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Assistant AG defends Sunshine probes

Assistant AG defends Sunshine probes

March 17th, 2018 by Bob Watson in Local News

In the last few months, Deputy Attorney General Darrell Moore reached the same conclusion in two separate investigations into how two statewide officials and their staffs complied with Missouri’s open records and record retention laws: Neither Gov. Eric Greitens nor state Auditor Nicole Galloway have violated those laws.

Moore — who spent nearly 30 years in the Greene County prosecutor’s office, including 12 years as the elected prosecutor — bristles when people question his personal integrity or his findings in those two probes.

“Our report stands on its own face and its own basis,” Moore told reporters during a 45-minute conference call Friday afternoon. “How people want to choose to politicize it or to use it, I can’t worry about that. … I’ve never compromised myself to further any political agenda.”

He said he would quit a job if someone told him ahead of time what conclusion he should find in an investigation, because he wants to keep his reputation that “the issue (always) is, what are the facts, what is the law and what is the conclusion?”

After leaving the prosecutor’s office in Springfield, Moore became then-auditor Tom Schweich’s chief of litigation.

After Schweich died in 2015, then-Attorney General Chris Koster asked Moore to join the state law office, and Hawley kept him a year ago.

Moore told reporters Friday that Hawley asked him to do the Galloway and Greitens investigations, “based upon my experience and training as a prosecutor, being able to craft and ask questions, and ascertain and try to determine the credibility of people, and my understanding and knowledge of the Sunshine Law.”

The auditor’s investigation began last December, with a request from the Kansas City area group Missouri Alliance For Freedom, to determine whether Galloway and her staff were following state law requirements when they used cellphones to send text messages to each other.

The governor’s office investigation followed reports late last year that Greitens and others in his office were using the Confide smartphone app that erases messages as soon as they have been read.

In both investigations, Moore said, they focused on “meetings with the chief policy makers or the people who would be in a position to be discussing, or formulating, policy — because the issue in both cases … centered around the fact, were public records as defined by (state law) being created and not retained and therefore not available for Sunshine Law requests?”

His investigations found “nothing to indicate to us that there were any attempts by anyone to avoid keeping records they had to keep” under state law, he said.

Both the auditor’s and governor’s offices have been involved in lawsuits over the same questions.

Missouri Alliance For Freedom sued Galloway in December, claiming the auditor’s office had not responded appropriately to its numerous Sunshine requests involving an audit of the Department of Revenue and its promptness in issuing tax refunds.

Cole County Circuit Judge Jon Beetem last month found the auditor is complying with state laws, and gave Missouri Alliance For Freedom time to revise its lawsuit.

In January, St. Louis lawyer Mark Pedroli sued Greitens over the use of the Confide application and, in his amended lawsuit earlier this month, said Moore’s investigation wasn’t very thorough because he didn’t interview Greitens and the governor’s staff “asserted ‘executive privilege’ (and) refused to answer any questions about the communications they destroyed with the governor.”

Additionally, Pedroli observed in a footnote, “There is no ‘executive privilege’ available in Missouri for the governor or his staff.”

Moore noted neither the governor’s nor auditor’s offices “formally asserted executive privilege, but there was discussion about the possibility of that.”

He acknowledged there’s no Missouri case law on the issue, although his governor’s office report cited cases from the federal courts and from Ohio.

Moore said he was being “facetious” when he wished Pedroli “good luck” in the ongoing lawsuit against Greitens.

“I don’t see that that’s going to go anywhere, based upon what we’ve found,” he explained. “We found no credible evidence” that anyone in either the governor’s or the auditor’s offices “were violating the public records law or the Sunshine law. … Not everything is a public record, and we’ve tried to drive that home.”

Moore said his investigations focused on the policymakers in each office and noted several times both investigations required having people volunteer to be interviewed.

“What you need to keep in mind is this inquiry depended totally on cooperation,” he said. “There is no subpoena power, (and) the reality is I have to deal with the law and the facts.”

In the auditor’s office, he said, text messaging was used only for “transitory” things — like scheduling a phone call or rescheduling a meeting.

Moore said he interviewed eight people on the governor’s staff, and five acknowledged using Confide on their personal phones — but only for those same kinds of transitory things that didn’t require keeping a permanent record.

One staff member admitted putting Confide on his state phone, but using it only to communicate with his personal phone to see how the app worked — then he deleted Confide from the state phone.

Moore’s report on the governor’s office noted some members of Greitens’ staff use a different application that provides “full end-to-end encryption for secure phone calls and text messaging” for security reasons surrounding some of the governor’s travels.

He said that application began being used in the Jay Nixon administration after the Ferguson disturbances and is protected by law from being open record.