While Not “Condoning” Public Official’s Use of Message Deleting App, Appellate Court Finds No Sunshine Law ViolationJune 9, 2022
In 2017, the Kansas City Star revealed that then-Governor Eric Greitens and several members of his senior staff were using the disappearing text App Confide in communicating with each other. The App automatically deletes text messages from a sender’s mobile telephone upon sending the message and correspondingly deletes that message from the recipient’s mobile telephone once read.
Learning of this, Ben Sansone and his Sunshine Project submitted a request under Missouri’s Sunshine Law, RSMo Section 610.010, et seq., trying to determine who was using the App, why, whether the automatically-deleted messages pertained to public business, and seeking copies of the messages sent using the App. The request was quickly followed by a lawsuit seeking the messages and asserting that the use of the App violated the Sunshine Law and Missouri’s Record Retention statute, RSMo, chapter 109. The trial court ruled against Sansone, who then appealed.
On June 7, 2022, the Missouri Court of Appeals for the Western District of Missouri affirmed the trial court’s judgment against Sansone. Sansone v. Governor of Missouri, WD84426 (Mo. App. W.D. June 7, 2022).The decision is available here. The appellate court noted that the former Governor’s use of the App likely violated the spirit, but not the letter, of the Sunshine Law, stating “[n]othing in this opinion should be interpreted to suggest that we condone the use of ephemeral messaging applications by public officials.” But “until the legislature ‘updates’ Missouri’s Sunshine Law to account for cellular phone technology and associated data, we cannot add words to the statute to accommodate Sansone’s legitimate concerns about the use of ephemeral messaging applications by public officials.” (Slip Op’n at 18 n. 7) (emphasis added).
Sansone and his attorney have said they will likely attempt to seek Supreme Court review.
Sunshine Law Not Applicable to Ephemeral Records
Because “[t]he Sunshine Law only requires that governmental agencies provide access to records then in existence, and in the agencies’ possession or under their control,” the court held: “[w]e need not decide whether messages exchanged by Greitens and his staff using Confide, and other data concerning the Governor’s Office’s use of Confide, constituted ‘public records’ under [the Sunshine Law]. Even if the requested information constituted ‘public records,’ Sansone’s request faces a separate, insuperable obstacle: … the messages and data Sansone seeks were not in existence, in the possession of the Governor’s Office, or retrievable at the time of his request. (Slip Op’n at 14-15).
The court held that the Sunshine Law is not a record retention statute. Record retention is the subject matter of Chapter 109, RSMo. While Sansone also asserted a claim under the Retention Statute, the court held that Sansone’s claims under that statute failed because, unlike the Sunshine Law, it does not create a private right of action. (Slip Op’n at 29-30).1 Only two provisions of the Sunshine Law, the court noted, require that records be maintained. Section 610.027.1 requires that records be preserved upon the filing of a Sunshine Law lawsuit, even if the applicability of the statute to those records is disputed. Section 610.023.2 prohibits removal of a record without written approval of the custodian. Neither of those provisions applied, according to the court, because the records were “destroyed well before the filing of this lawsuit,” and Sansone never claimed they were ever “removed…—indeed, he makes no argument that the data he seeks was ever physically located in the Governor’s Office.” (Slip Op’n. at 16).
Sansone did not assert any claim based on Section 610.025 of the statute. As the court noted, that section of the statute “specifically designates as public records certain ‘message[s] relating to public business’ that are ‘transmit[ted] . . . by electronic means’ and requires those messages to be transmitted to the agency’s custodian of records, or to the sender’s ‘public office computer’” where they would be retained. (Slip Op’n at 16-17). Because Sansone never raised this issue, the court did not consider the potential applicability of this provision, which the Governor had not followed and which the App prevented from being followed. (Id.).
Personal Mobile Telephone Numbers of Public Employees Exempt from Disclosure
Sansone also requested disclosure of the Governor’s personal mobile telephone number. The parties agreed that the number of a government-issued cell phone would be an open record subject to disclosure under the statute. However, the court agreed with the Governor that it was appropriate to refuse to release his personal cell phone number pursuant to Section 610.021(13) of the Sunshine Law, which exempts individually identifiable personnel records, given that such information would render an “employee susceptible to being harassed, or having his or her cell phone account hacked, which could result in hackers gaining access to a trove of highly personal information and using this information for fraudulent and/or criminal purposes.” (Slip Op’n at 25).
While the appellate court was critical of the Governor’s use of the Confide App and its potential for impeding governmental transparency intended under the Sunshine Law, it found itself constrained by the language of the Sunshine Law which applies only to records existing at the time of a request and provisions of the Retention Statute which include no private right of enforcement. While the court noted, “it is not lost on this court that a public official’s use of the Confide application has the practical effect of side-stepping the reach of Missouri’s Sunshine Law via ephemeral messaging applications that delete communications before any request for their disclosure can be made. And, as Sansone’s counsel noted at the oral argument of this case, it may be time to ‘update’ Missouri's Sunshine Law that was originally enacted in 1973—well before cellular phone technology existed and, likewise, well before ephemeral messaging applications existed. But, it is not within the power of the judicial branch of government to ‘create’ statutory law; that power is vested with the legislative branch of government.” (Slip Op’n at 18 n. 7).
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1Section 109.270 of the Retention Statute provides that “[a]ll records made or received by or under the authority of or coming into the custody, control or possession of state or local officials in the course of their public duties are the property of the state or local government and shall not be mutilated, destroyed, transferred, removed or otherwise damaged or disposed of, in whole or in part, except as provided by law.” RSMo Section 575.110 provides that “A person commits the offense of tampering with a public record if with the purpose to impair the verity, legibility or availability of a public record, he or she: (1) Knowingly makes a false entry in or falsely alters any public record; or (2) Knowing he or she lacks authority to do so, destroys, suppresses or conceals any public record.” A violation is a class A misdemeanor.