Cole County Circuit Court Judge Dan Green used a baseball metaphor to put the state’s Sunshine Law in perspective.
Green was issuing a ruling last month on a lawsuit brought by the Post-Dispatch over the state of Missouri’s refusal to release applications of companies and individuals who were seeking to grow or sell medical marijuana. Another reporter and I had requested the information.
It was a close case, Green said, but because the Sunshine Law has a presumption of openness, the “tie goes to the runner,” he said.
A couple of weeks later, Green’s colleague down the hall, Circuit Court Judge Jon Beetem, issued a different sort of ruling in a Sunshine Law case.
In Beetem’s ruling, there will be no close play at first base. In fact, he’s not even letting the players on the field.
The case stems from a lawsuit filed in December 2017 by attorney Mark Pedroli alleging that former Gov. Eric Greitens violated the Sunshine Law by using a text-messaging app called Confide which automatically destroys text messages.
The facts of the case have been made pretty clear over the past year. At least 27 members of the Greitens administration had Confide on their phones. The text-destroying app was used for public business.
In fact, when Beetem refused to dismiss the lawsuit more than a year ago, he hit a home run with this line:
“The argument that the use of the Confide app excuses compliance because nothing is retained holds less water than a policy of using disappearing ink for all official documents.”
What changed since then?
Basically, Beetem determined that Confide is just too good at destroying text messages, and he did so without even allowing Pedroli on the playing field.
Pedroli says he was not allowed to subpoena or ask Greitens’ staff if they possessed screenshots of the elusive Confide messages, even though the governor’s forensic expert admitted in a deposition that screenshots or photographic evidence of the messages could exist.
The way Beetem sees it, the Sunshine Law — which requires transparency of public documents — only applies to records that are retained. And the state’s separate records retention law, Beetem said, wouldn’t allow a private individual to bring such a lawsuit.
If Beetem’s ruling were to stand — and the cause of public accountability suggests Pedroli should appeal it — then it is open season on the destruction of public records.
In the days after the Kansas City Star first reported that Greitens’ staffers were using the text-destroying app, dozens of state lawmakers and other political operatives added it to their phones to see what the fuss was about.
In the new Darkened World According to Beetem, they might as well use Confide for all their public business, because under his interpretation of the law, there can be no consequence for such behavior.
We don’t have to summon much imagination to figure out what the consequences of such public policy would be.
In St. Louis, four members of the St. Louis Police Department are facing federal charges related to the brutal beating of their fellow officer, Luther Hall, who was undercover on one of the nights of the protests following the Jason Stockley verdict.
Among the evidence the U.S. Attorney’s Office used to make its case were text messages sent between various officers, some of them racially charged, others gleefully talking about beating protesters.
What if those officers had been using Confide?
It’s not far-fetched.
In fact, during those very protests, at least some St. Louis police officers had access to another text-destroying app called Silent Circle. The commander of the department’s intelligence division, Capt. Michael Deeba, had Silent Circle on his phone, according to documents obtained by the Post-Dispatch in a Sunshine Law request. And in an email copied to Greitens’ staffer Nick Maddux and other city and state public safety officials, Deeba encouraged other police officers to use the app.
At least a couple of other St. Louis police officers downloaded the app, according to records obtained by the Post-Dispatch.
The city’s police department initially denied that anybody in the department was using Silent Circle in response to the Sunshine Law request. It later produced emails showing otherwise when asked to check again.
What would be the status of the federal case in the beating of Officer Hall if the police officers involved were using Silent Circle or another ephemeral app like it?
What would be the status of public accountability if every elected official in the country decided it was OK to destroy public documents before they could be retained?
If Beetem’s whiff of a ruling in the Confide case is allowed to stand, it’s game over for taxpayers wanting to see what their public officials are doing behind closed doors.