Two Cole County judges on Monday dismissed a pair of lawsuits brought against the Missouri Governor’s Office — albeit, two different office holders — for alleged violation of the state’s Sunshine Law.
In one case, Judge Jon Beetem ruled former Gov. Eric Greitens’ use of a message-destroying application did not violate the law because automatically deleted text messages were never officially retained.
In the other case, Judge Patricia Joyce ruled Gov. Mike Parson’s administration had the discretion under Missouri law to charge or waive fees related to open records requests.
The two civil lawsuits, the former filed in December 2017 and the latter in October 2018, took issue with how different governors handled Missouri’s open records law. One lawsuit focused on the use of Confide by state employees while the other took issue with the cost to obtain records.
The allegation that the Governor’s Office violated the Sunshine Law by failing to turn over cell phone records was the sole count not dismissed.
Beetem dismissed the lawsuit determining automatically deleted text messages were never officially retained and a private citizen has no authority to enforce records retention laws.
In December 2017, Ben Sansone, with Mark Pedroli on behalf of The Sunshine Project, sued Greitens alleging public employees were using Confide to undercut the Sunshine Law.
The two St. Louis attorneys sought to get the answers that then-Attorney General Josh Hawley couldn’t into the use of Confide by Greitens and his staff. Hawley ultimately concluded there was no evidence the Governor’s Office broke the law but said if the Attorney General’s Office (AGO) has subpoena power in the investigation, it could be reopened.
The suit into the use of Confide did turn up answers the AGO investigation didn’t — mostly who was using the message-destroying application.
At the time of Greitens’ resignation, there were 15 staffers and 4 former employees of the Greitens administration — and the governor himself — who used Confide, according to documents submitted on June 1, 2018.
Attorneys representing the state argued automatically deleted messages could not be retained and thus were unavailable to be produced in a records request.
While Beetem originally dismissed that argument last year, he ultimately sided with the state on Monday. Beetem ruled with no records in existence, the issue did not fall under Missouri’s open records law.
Before Greitens resigned last June, Beetem dismissed that line of thinking. He said the Governor’s Office’s argument “holds less water than a policy of using disappearing ink for all official documents.”
There was one facet to the lawsuit not dismissed by Beetem: The allegation that the Governor’s Office violated the Sunshine Law by failing to turn over cell phone records. A hearing has been scheduled for July 23 on the topic.
Elad Gross v. Michael Parson
“Gross’ petition pleads no facts to support even the inference that the Governor’s Office engaged in any conduct to knowingly or purposefully violate the Sunshine Law,” Joyce wrote in her decision Monday. “Courts routinely strike or dismiss threadbare, speculative, and conjectural allegations of conspiracy.”
Elad Gross filed a legal challenge in October 2018 after the Parson administration said it would cost more than $3,500 to process the extended Sunshine Law request. Gross, who previously worked in the AGO, is currently running for attorney general as a Democrat.
Gross was seeking records related to Greitens. The open records request included 54 points, and Parson’s office estimated it would take nearly 91 hours to complete. At $40 an hour, the request would cost Gross $3,618.
Joyce dismissed the lawsuit over the cost of the records, ruling the law gives the office the discretion to charge or waive fees.
At the time of the records request, Gross was also suing A New Missouri, a political nonprofit linked to Greitens; that case that was also dismissed.