Despite not ‘tolerating’ public official’s use of message deletion app, Court of Appeal finds no breach of Sunshine Act
In 2017, the Kansas City Star revealed that then-Governor Eric Greitens and several of his senior staff were using the endangered text App Confide to communicate with each other. The app automatically deletes text messages from the sender’s mobile phone while sending the message and accordingly deletes that message from the recipient’s mobile phone once read.
Hearing of this, Ben Sansone and his Sunshine Project submitted a request under Missouri Sunshine Law, RSMo Section 610.010, et seq., trying to determine who was using the app, why, if the automatically deleted posts were about public affairs and seeking copies of messages sent using the app. The request was quickly followed by a lawsuit seeking the messages and claiming that use of the app violated Sunshine Law and Missouri’s Records Retention Act, RSMo, Chapter 109. The court in first instance 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 MissouriWD84426 (Mo. App. WD 7 Jun 2022). The decision is available here. The appeals court noted that the former governor’s use of the app likely violated the spirit, but not the letter, of the Sunshine Act, stating “[n]Nothing in this notice should be taken to suggest that we condone the use of ephemeral messaging apps by public officials. But “until the legislature ‘updates’ Missouri’s Sunshine Law to account for cell phone technology and associated data, we cannot add words to the law to account for cell phone technology. Sansone. legit concerns about the use of ephemeral messaging apps by public officials. (Slip Op’n at 18 n. 7) (emphasis added).
Sansone and his lawyer said they would likely try to seek Supreme Court review.
The Sunshine Law does not apply to ephemeral recordings
Because “[t]The Sunshine Act only requires government agencies to provide access to records then existing and in the possession or under the control of the agencies,” the court said: “[w]We need not decide whether messages exchanged by Greitens and his staff using Confide, and other data regarding the Governor’s Office’s use of Confide, constituted “public records” under [the Sunshine Law]. Even if the requested information were “public records,” Sansone’s request faces a distinct and insurmountable hurdle: …the messages and data Sansone seeks did not exist, were not in the possession of the governor’s office or were not recoverable at the time of his request. (Slip Op’n at 14-15).
The court held that the Sunshine Law was not a records retention law. Retention of records is covered in Section 109, RSMo. Although Sansone also asserted a claim under the Retention Act, the court held that Sansone’s claims under this law failed because, unlike the Sunshine Act, it did not create a right of private action. (Slip Op’n at 29-30).1 Only two provisions of the Sunshine Law, the court noted, require record keeping. Section 610.027.1 requires that recordings be retained when filing a lawsuit under the Sunshine Law, even if the applicability of the law to those recordings is disputed. Section 610.023.2 prohibits the deletion of a record without the written approval of the custodian. None of these provisions applied, the court said, because the records were “destroyed long before this lawsuit was filed,” and Sansone never claimed that they were never “deleted.” .. – 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 has not asserted any claims based on Section 610.025 of the Act. As the court noted, this section of the law “expressly designates as public records certain ‘messages[s] relating to public affairs” which “transmit[ted] . . . by electronic means” and requires that such messages be forwarded to the agency’s records repository or the sender’s “public office computer”, where they would be retained. (Slip Op’n at 16-17). Since Sansone never raised this issue, the court did not consider the potential applicability of this provision, which the governor had not followed and the application prevented from being followed. (Identifier.).
Personal mobile phone numbers of public employees exempt from disclosure
Sansone also requested disclosure of the Governor’s personal cell phone number. The parties agreed that a government-issued cell phone number would be an open file subject to disclosure under the law. However, the court agreed with the governor that it was appropriate to withhold his personal cell phone number pursuant to Section 610.021(13) of the Sunshine Act, which exempts individually identifiable personal records, since such information would make an “employee susceptible to harassment or having their cell phone account hacked, which could lead hackers to access a wealth of highly personal information and use that information for fraudulent and/or criminal purposes (Slip Op’n at 25).
While the appeals court criticized the governor’s use of the Confide app and its potential to impede government transparency under the Sunshine Act, it found itself constrained by language in the Sunshine Act that does not applies only to records existing at the time of a request. and retention law provisions that do not include any private right of enforcement. As the court noted, “it is not lost on this court that a public official’s use of the Confide app has the practical effect of circumventing the scope of Missouri’s Sunshine Law through ephemeral messaging apps.” that delete communications before any request for disclosure can be made. And, as Sansone’s attorney noted during oral argument in this case, it may be time to “update” Missouri’s Sunshine Law which was originally enacted in 1973 – long before technology cell phones existed, and likewise, long before ephemeral messaging apps existed. But, it is not within the power of the judicial branch of government to “create” statutory law; this power belongs to the legislative branch of government. (Slip Op’n at 18 n. 7).
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