Greitens' attorney tries to toss Confide case

JEFFERSON CITY, Mo. -- An attorney for Gov. Eric Greitens on Friday argued a Cole County judge should toss out a lawsuit alleging governor's office staff violated the Sunshine law by using a message-deleting smartphone app.

At issue is a lawsuit over a December open-records request by a St. Louis attorney for records related to use of the Confide app by top staff in the Republican governor's office. The app automatically deletes messages after they are read and prevents recipients from saving, forwarding, printing or taking screenshots of messages. The feature sparked concern among some government-transparency advocates.

Greitens' attorney Bob Thompson on Friday argued the governor's office complied with attorney Ben Sansone's records request to the extent it could. He said providing cellphone numbers of staff who downloaded the app raised safety concerns, and he said the nature of the Confide app means there was no record of messages.

Thompson told Cole County Circuit Judge Jon Beetem officials "can't produce what does not exist."

Thompson also said Sansone doesn't have standing to allege potential violations of records-retention laws. He said those concerns should go to the attorney general, prosecutors or other elected officials to enforce.

Fellow Republican Attorney General Josh Hawley's office launched an investigation into use of the app last year, but didn't find any evidence of wrongdoing.

Five governor's office staffers told the attorney general's office they discussed government-related business using the app, according to the report. But the staffers said they only messaged about "logistics and scheduling," such as planning meetings.

The attorney general's office concluded state law doesn't require those types of messages to be retained because they were "exclusively non-substantive."

Mark Pedroli, who represented Sansone, said no court has ever ruled against a private citizen suing over open-records-law violations, so it should be allowed. He said that was the intent behind the law.

Pedroli told the judge governor's office staff "made a premeditated decision to destroy" documents, and in court filings he argued the office should have attempted to recover the messages from Confide.

Beetem did not indicate when he would decide whether to allow the case to move forward.