Cole County Circuit Judge Jon Beetem on Friday denied a request for court order blocking Gov. Eric Greitens and his staff from using a mobile device application that destroys messages after they are sent or read.
But he said the case has "a whole bunch of open questions" that need to be decided, and scheduled a status hearing for March 2 to determine the next steps in the case.
The Kansas City Star reported Dec. 7 that Greitens and a number of people in his office were using an app called "Confide," which automatically erases a text message after it's been read — and prevents anyone from forwarding, saving, taking a screenshot or printing the text.
St. Louis County lawyers Ben Sansone and Mark Pedroli submitted a "Sunshine Law" request to the governor's office Dec. 20, asking for "documents related to the governor's alleged use of text message and communication destroying software," as well "download and use logs and retention policies."
They filed an eight-page lawsuit Dec. 29 against Greitens, Michelle Hallford — who is the governor's records custodian — and 20 "John Does," arguing that use of the "Confide" app violated Missouri's records retention and Open Meetings/Open Records laws.
Pedroli told Beetem on Friday that the "John Does" are the office staff and employees and that a temporary restraining order was needed to make sure the communications are saved because, otherwise, "there's no way to know what these communications were about."
Failing to grant the request, he said, could result in "immediate and irreparable injury," since the app would continue to destroy messages.
"It's possible that people inside of the governor's office have been communicating using Confide and have destroyed up to 10 or 15 messages in the last 30 minutes," Pedroli told Beetem. "Every one of these communications are being shredded, and they can't be recovered."
But Beetem ruled at the end of the nearly 50-minute hearing that Pedroli had not proven a need for the restraining order.
"We have statutory requirement to retain these documents," the judge said, telling defense attorney Gabriel Gore, "I don't know that it's as simple as you have argued."
Gore, of the Dowd Bennett law firm in Clayton, represents Greitens and Hallford at the governor's request because Attorney General Josh Hawley's office also is looking into the legality of using the Confide app.
The Sansone lawsuit is "substantially similar to our inquiry" into the Greitens administration's use of the application, Loree Ann Paradise, Hawley's deputy chief of staff, told the News Tribune.
Gore told Beetem that Pedroli not only had not shown any "immediate and irreparable harm" to trigger a restraining order, but that he "cannot show they have any probability of succeeding on the merits of the case."
Gore said he expects Beetem eventually will dismiss the case.
He said Pedroli had "repeatedly misstated" the retention law's requirements.
Gore cited a just-released attorney general's opinion about records retention by the state auditor's office, that says the auditor didn't have to show "text messages (that) are 'transitory' in nature, relating to non-substantive matters like logistics and scheduling."
At the auditor's office, most of those "transitory text messages are automatically deleted after 30 days," the attorney general's report found, "which was the default, automatic-deletion setting on the (auditor's) State-issued phones."
Gore said the 'Confide' app was used on similar messages in the governor's office and they don't have to be retained.
But, Pedroli countered, "The attorney general looked at the auditor's messages — they weren't shredded."
Gore said the governor's office already had placed an "investigative hold" on the use of the application — so that it isn't being used currently.
The Star reported Wednesday that members of Greitens' staff "appear to have deleted" the secret text-messaging app.