Our View

It's your government.

Or was.

If you want it back, you are going to have to tell that to lawmakers — loudly.

A ruling earlier this week by a Cole County judge has blown a black hole in Missouri's Sunshine Law — one of the best tools you have to own what is happening with elected officials. The Sunshine Law allows you to know what is being done and by whom, to whom elected officials are talking and what they're saying, and ultimately to hold them accountable.

Without this tool, you can't own your government.

The judge ruled that former Missouri Gov. Eric Greitens didn't violate the Sunshine Law when he and his staff used Confide, an app that erases text messages as soon as they are read and disables screenshots on mobile devices when the app is open. The messages are not retained on the sender's or the recipient's devices, or on a server.

The ruling was a stunner because it flies in the face of 46 years of the best understanding of Missouri Open Records/Open Meetings Law, also known as the Sunshine Law.

It also was a stunner because in an earlier ruling, in April 2018, denying a motion to dismiss, the judge wrote, "The argument that the use of the Confide app excuses compliance (with the Sunshine Law) because nothing is retained holds less water than a policy of using disappearing ink for all official documents."

We thought that an apt analogy.

But in his summary judgment this week, the judge wrote of Confide messages: "To the extent that it is a record, it is not much different (than) a digital phone call which exists only for the moment.

"... having found above that the Confide records are not retained, the court cannot find that defendants failed to comply with the preservation requirements of (The Sunshine Law.)"

What's more, the judge also ruled, "Enforcement of the records retention requirements (under Missouri law) is not available via private action."

Meaning private citizens don't have a tool they can use to demand records be kept, short of pressuring lawmakers.

This is a dangerous ruling, and the situation is now likely to get worse, as the use of end-to-end encryption and self-destruct apps has proliferated among elected officials.

Mark Pedroli, co-founder of Missouri's Sunshine and Government Accountability Project, which sued the governor’s office over its use of Confide, has argued — correctly, we believe — that government officials are not allowed to destroy communications, of any sort.

If there is a reason to be hopeful, it is that the Missouri House approved legislation this spring that would have banned the use of self-destructing text message apps, but it failed to get much traction in the Missouri Senate. This spring, lawmakers will have to do better.