In a legal action filed in late December, attorney Ben Sansone wants a judge to bar the Republican governor and his staff from using the Confide app and reveal the names of all staffers who have used the software.
“The use of automatic communication destroying software by elected officials and government employees is illegal and constitutes an ongoing conspiracy to violate the Missouri Sunshine law and Missouri State and Local Records law, not to mention a significant affront to the open government and democratic traditions of Missouri and the United States,” the lawsuit claims.
The governor’s use of the app also has sparked a probe by Missouri Attorney General Josh Hawley, who announced on Dec. 20 that his office would investigate his fellow Republican at the request of Sen. Scott Sifton, D-St. Louis County.
The governor’s office did not immediately respond to a request for comment about Sansone’s lawsuit, which was filed on behalf of the Sunshine Project, an organization that champions open government.
The mobile phone application Confide automatically destroys text messages after messages have been read, leaving no record or trace of the message exchange, similar to a self-destructing message featured in the TV show “Mission: Impossible,” which debuted in 1966. The Kansas City Star first reported the presence of the app on cellphones associated with Greitens and his staff in early December.
The governor has not directly denied the claims made in the report, but told reporters during a press conference in Bellefontaine Neighbors that “this is another nothing story that’s come from a liberal media outlet that is just desperate for salacious headlines.”
In response to Hawley’s investigation, Greitens spokesman Parker Briden said the governor’s office is “confident” the review will show the law is being followed.
“Under the Governor’s Office records retention policy, records related to official business of state government that come into possession of the Governor’s office staff are retained,” Briden said.
He stated that Missouri law does not require that “transitory documents, drafts, non-decision making documents, records that are not necessary to sustain administrative functions, and materials that lack substantial administrative or operational value” need to be retained.
In the lawsuit, Sansone says he submitted an open records request seeking documents associated with the use of the app on Dec. 20. But the response he received from the governor’s office failed to include a “detailed explanation” of why the information could not be immediately released.
Sansone suggests that the easiest solution is for the governor to stop using the software.
“The governor’s remedy is simple, as simple as it was for governors and staff members before them; to simply communicate through other advanced means of communications, including SMS or text messaging, emailing, and/or one of the many forms of communication that do not self-immolate like a Mission Impossible directive,” the lawsuit says.
The issue could become the subject of debate in the Legislature when lawmakers return to action Wednesday. As part of a package of ethics-related legislation introduced by Democrats in the House, Rep. Gina Mitten, D-Richmond Heights, is calling for a ban on the use of apps like Confide.
House Bill 1817 prohibits members and employees of public governmental bodies from using software designed to send encrypted messages that automatically self-destruct to conduct public business.
She suggested that her colleagues simply not use the app.
“I would encourage lawmakers to think about the spirit as well as the letter of the Sunshine Law and act accordingly,” Mitten said.
House Speaker Todd Richardson, R-Poplar Bluff, meanwhile, told the Post-Dispatch Tuesday that the Legislature may consider modernizing the state’s Sunshine Law, which was written decades ago, before the use of text messages.
“I don’t think we would close the door on looking at the current law and where it could be improved and updated,” Richardson said. “To the extent that there are some changes that need to be made to that Sunshine Law, I know that members of the House would be open to it.”
He declined, however, to weigh in specifically on the governor’s use of Confide.
“Obviously I think everybody wants to see an open and transparent government,” Richardson said. “I don’t have any comments beyond that.”
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