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Missouri State Capitol

The Missouri State Capitol in Jefferson City on July 30, 2017. Photo by Kurt Erickson, kerickson@post-dispatch.com

JEFFERSON CITY • Attorney General Josh Hawley says text messages are public records under Missouri’s open records law, raising fresh concern about fellow Republican Gov. Eric Greitens’ use of a secretive app that deletes text messages after they’ve been read.

Hawley said his office policy – and legal view — was that text messages sent or received by state employees about state business should be subject to the same rules as emails when it comes to public records under the state’s Sunshine Law.

“Our view is that text messages are like emails,” Hawley told reporters Monday during the presentation of a new program for veterans in his office.

That doesn’t necessarily mean all text messages would be made available upon request, just as all emails are not.

“There is a process for determining what is a record. What’s a closed record? What’s an open record? Our view is that text messages are emails in that respect and should be subject to the same analysis,” Hawley said.

His comments came as Greitens called reports about the use of the app Confide within his office “fake news.”

“This is another nothing story that’s come from a liberal media outlet that is just desperate for salacious headlines,” Greitens said during a separate briefing in Bellefontaine Neighbors.

The Kansas City Star reported Thursday that Greitens and members of his senior staff had the app Confide downloaded to their personal cellphones. The app deletes messages and prevents recipients from saving, forwarding, printing or taking screenshots of messages.

It is the latest in a series of incidents that point to a governor who prizes secrecy, ranging from not revealing how much donors gave to his inaugural celebration to installing a lock on the door to his press office.

The Confide revelation triggered a call from Sen. Scott Sifton, a Democrat from the Affton area, for Hawley to investigate the governor and his staff for potential open records law violations.

Hawley confirmed he is reviewing case law to determine whether to appoint a special investigator. He said he cannot directly investigate Greitens because his office is already defending the governor in other legal cases.

“It’s a very complicated issue,” Hawley said. “The legal complexities are significant. We’ll have more for you soon.”

The Sunshine Law statute also gives jurisdiction on the issue to the Cole County prosecutor. He could not immediately be reached for comment Monday.

It remains unclear whether the governor and his staff are using the app for state business, campaign work or other government communication, or for personal matters.

Parker Briden, the governor’s spokesman, told the Star he was unaware of anyone in the governor’s office downloading the app to a state-issued device.

But Hawley said he believes the law also would cover text messages about state business being sent on private cell phones.

“I don’t think it settles the matter just because it is a private device or a personal device. That alone, I believe, would not qualify that as a non-record,” Hawley said. “This is one of the difficulties we face with a Sunshine Law that was written decades and decades ago and has not been updated to take into account modern technology.”

Meanwhile, Hawley, who is running for the GOP nomination for U.S. Senate, unveiled a plan to create a program to provide free legal help to military service members.

The new Military Legal Assistance Team will work with attorneys from military bases in Missouri to find private attorneys who will provide free services to service members with certain legal needs.

A new advisory board will determine which legal needs would qualify for the program and create a strategy for recruiting attorneys to provide the help.

“I can’t think of a better way for the law profession to give back to our troops,” said advisory board member John Comerford, a former Navy officer who is a partner at the Dowd Bennett law firm in St. Louis.

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Kurt Erickson is a reporter for the St. Louis Post-Dispatch