Cole County Circuit Judge Jon Beetem ruled nearly two weeks ago that the lawsuit challenging Gov. Eric Greitens' use of the Confide smartphone application would go forward - and his written order made available this week clarifies his reasoning.
The application erases messages as soon as they're read, and St. Louis lawyer Mark Pedroli - who represents Ben Sansone and the Sunshine Project - filed the original suit Dec. 29, accusing the governor and his staff of violating the state's Sunshine and open records laws by using the Confide app on their mobile phones.
Bob Thompson, a Kansas City lawyer representing Greitens and the governor's office, asked Beetem to dismiss the entire lawsuit, arguing during an April 6 hearing that "each and every one of these (12) counts should be dismissed as a matter of law."
He said Pedroli and his clients already have been told "the documents don't exist, were not retained and cannot be produced" - and that the governor's office has stopped using the application.
But, Beetem wrote, abandonment of the app by the governor's office staff "does not in and of itself moot the issues."
"While the Court would like to take the Defendants at their word, there is no legal reason that they could not reinstate their use of Confide," the judge wrote.
The judge said the argument that the governor's office has abandoned use of the Confide application "is a fact question and is a factor to be considered by the Court" in evaluating whether there should be "equitable relief" to the plaintiffs as the lawsuit continues.
Beetem said seven other counts raised in the lawsuit "adequately plead violations of the Missouri Open Records/Open Meetings Law (the Sunshine Law). The argument that the use of the Confide app excuses compliance because nothing is retained holds less water than a policy of using disappearing ink for all official documents. While there seems to be little dispute that records were made, the issue (before the court) revolves around were they records which should have been retained and/or are retained in the custody of third parties."
Those questions, the judge said, were adequately pleaded and should be considered as the case continues.
But Beetem upheld Greitens' request to dismiss part of the lawsuit.
Pedroli had argued during the April 6 hearing: "None of (the laws) say there isn't a private right of action."
Beetem disagreed, writing: "The Court finds that no private action exists to enforce this statute."
He said clarifying the relationship between Missouri's records-retention law and the Sunshine Law "may serve to help illuminate what records must be retained."
He gave Greitens' attorneys until May 21 to respond to Pedroli's amended lawsuit.
Beetem also scheduled a status hearing for 9 a.m. next Friday to discuss how the case will move forward.