In Washington, the House committee examining what really happened at the Capitol on Jan. 6, 2021, is examining the possibility that to hide his contacts from the public view.
In Missouri, hidden telecommunications are no hypothetical 鈥� but whether public officials can conceal their conversations with impunity remains a question for the Court of Appeals.
On one side is the Missouri governor鈥檚 office. Eric Greitens was governor in 2017 (and not yet embroiled in the scandal that would bring his resignation) when the Kansas City Star revealed he and his senior staff were using the disappearing text app Confide. A citizen, Ben Sansone, quickly filed a Sunshine Law request, seeking to find out who in Greitens鈥� office was using the app 鈥� and whether the messages could be seen like any other record of governance. When the governor鈥檚 office failed to respond in a timely way, attorney Mark Pedroli filed suit.
In litigation, Pedroli learned that no fewer than 27 Greitens鈥� staffers were using Confide 鈥� and he says he鈥檚 established they were using it for official government business. But he still ran into trouble. Cole County Judge Jon Beetem , saying in essence that Missouri鈥檚 Sunshine Law only applies to government records that have been retained, while disappearing text messages cease to exist soon after arrival. Private citizens, Beetem wrote, had no right to sue over them.
On May 12, Pedroli will argue before the Missouri Court of Appeals that Beetem got it wrong. He says the consequences are huge: If the lower court鈥檚 dismissal stands, government agencies in Missouri will have every incentive to not only shield their communications via apps like Confide, but also to destroy records with impunity. 鈥淭heoretically, yes, people could destroy the records, and there would be no recourse under the Sunshine Law,鈥� Pedroli said on Tuesday鈥檚 St. Louis on the Air.
After all, Beetem suggested that Confide messages are not public records because they are not retained by government bodies. Under that logic, he writes, 鈥渁 record is a 鈥榩ublic record鈥� if an official decides to keep it, but not a 鈥榩ublic record鈥� if the official decides to destroy it.鈥�
The only recourse under Beetem鈥檚 standard, Pedroli said, would be if the state鈥檚 attorney general chose to bring a criminal investigation using a different state law.
That has not happened in Missouri. While then-Attorney General Josh Hawley initially launched a probe into Greitens staffers鈥� use of Confide, his staff members allotted just 15 minutes for each staff interview and decided not to interview Greitens at all 鈥� because . They suggested only a handful of Greitens staffers were using the app (something Pedroli later disproved) and soon found .
Only later did the public learn that Hawley鈥檚 own chief of staff, as well as a top deputy involved in the probe, were also using Confide.
After Hawley became a senator, the state treasurer, Eric Schmitt, became attorney general. Schmitt could have chosen to pick up the matter. But, Pedroli said, he had a conflict, too: 鈥淗is former chief of staff at the Treasury also was on Confide at around the same time as Governor Greitens.鈥�
Said Pedroli: 鈥淓verybody had a conflict of interest. But nobody talked about it. Schmitt should have said, 鈥楲ook, somebody from my office used it. We can't pursue this. We're going to appoint an independent prosecutor. We're going to have somebody else look into this.鈥� Hawley could have done the same thing. No one did that.鈥�
Ever since the Star first revealed the use of burner apps like Confide, the state legislature has talked about amending the Sunshine Law to make clear they are prohibited for government business.
鈥淵ou always hear the legislators are going to do this, they're going to do that. But it just doesn't happen,鈥� Pedroli said. 鈥淪o we don't feel confident that we're going to get anything out of the legislature that really addresses this. 鈥� We need the Court of Appeals. And I think that's where the action is right now.鈥�
鈥�鈥� brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by and produced by , , and . Jane Mather-Glass is our production assistant. The audio engineer is .
