IN THE CIRCUIT COURT OF COLE COUNTY STATE OF MISSOURI BEN SANSONE, on behalf of THE SUNSHINE PROJECT Plaintiff, v. ERIC GREITENS, Governor of Missouri and MICHELLE HALLFORD, Custodian of Records for Missouri Governor Greitens and JOHN DOES 1 through 20. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 17AC-CC00635 PLAINTIFFS’ AMENDED MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION Plaintiff Ben Sansone, on behalf of the Sunshine Project, by and through their undersigned Attorneys and pursuant to Rule 92.02 of the Missouri Supreme Court Rules, move this Court to enter a Temporary Restraining Order (“TRO”) and, after a hearing, a Preliminary Injunction enjoining Defendants from Missouri “Sunshine Law”, Chapter § 610 of the Missouri Revised Statutes and Missouri “State and Local Records Law” Chapter §109 of the Missouri Revised Statutes. In support of their Motion, Plaintiffs state as follows: 1. The use of automatic communication destruction software, like Confide , among government employees, violates both Missouri “Sunshine Law” Chapter 610 of the Missouri 1 Revised Statutes and Missouri “State and Local Records Law” Chapter 109 of the Missouri Revised Statutes. 2. The Sunshine Law § 610.010 RSMo defines “public business” as “all matters which related in any way to the performance of the public governmental body’s functions or the conduct of its business.” 3. The Sunshine Law § 610.010(6) defines “public record” as “any record, whether written or electronically stored, retained by or of any public governmental body..” 4. The Sunshine Law § 610.011 demands liberal construction of law: “It is the public policy of this state that meetings, records, votes, actions, and deliberations of public governmental bodies be open to the public unless otherwise provided by law. Sections 610.010 to 610.200 shall be liberally construed and their exceptions strictly construed to promote this public policy.” 5. The Sunshine Law § 610.030 authorizes circuit courts the power to issue injunctions to enforce the law. 6. On December 20, 2017, Plaintiff’s sent a sunshine request to the custodian of records that asked for: a. Documents or phone records, including logs, that show the date that the governor and anyone employed by the governor's office downloaded the phone application Confide on any their mobile phones. b. Documents or phone logs that show the date that the governor and anyone employed by the governor's office downloaded any mobile phone and/or computer application which purpose of the application is to automatically destroy text messages and/or other forms of communication after the communication is sent or received. 2 c. Documents or phone records that show the mobile phone numbers used by the governor. d. A copy of all SMS messages, text messages, and/or communications sent and/or received by the Governor using the mobile phone application Confide. e. A copy of all SMS messages, text messages, and/or communications sent and/or received by anyone employed by the governor's office using the mobile phone application Confide. f. A copy of the document retention policy for the Governor's office. 7. As required by statute, the defendants did not produce the records within three days and did not give a detailed explanation of the cause for further delay and the place and earliest time and date that the record will be available for inspection. 8. The Sunshine Law § 610.027(1) provides that “Upon service of a summons, petition, complaint, counterclaim, or cross-claim in a civil action brought to enforce the provisions of sections 610.010 to 610.026, the custodian of the public record that is the subject matter of such civil action shall not transfer custody, alter, destroy, or otherwise dispose of the public recor , notwithstanding the applicability of an exemption pursuant sought to be inspected and examined to section 610.021 or the assertion that the requested record is not a public record until the court directs otherwise. (emphasis added) 9. On December 20, 2017, Plaintiff delivered a Sunshine request to the Governor’s Custodian of Records wherein he asked for “A copy of all SMS messages, text messages, and/or communications sent and/or received by the Governor using the mobile phone application Confide”. 3 10. On December 20, 2017, Plaintiff sought to inspect and examine text messages sent and received using Confide. By doing so and then serving the lawsuit upon the governor and custodian of records, pursuant to § 610.027 RSMo, plaintiff created an affirmative duty, by statute, upon the defendants not to destroy any more text messages. 11. On January 25, 2018, more than a month after plaintiff submitted the Sunshine request, Sarah Madden, Special Counsel to the Governor, and not the custodian of records responded a second time arguing that the Office of Governor doesn’t have responsive records for Request No. 1; that responsive records to Request No. 2 are closed pursuant to 610.021 (21) and (18) “as the disclosure of this information would impair the Office of Governor’s Security Division’s ability to protect the Governor and his staff..”; that the records responsive to Request No. 3 are closed pursuant to 610.021 (14) and 407.1500 RSMo; that the Office of Governor has no responsive records to Requests 4 and 5 (seeking the text messages sent using Confide). 12. A TRO and/or preliminary injunction against further destruction of text messages is an extension of already existing law directing defendants to preserve the requested evidence and communications. The continued use of Confide among the governor and Office of Governor staff constitutes a willful disregard of the Sunshine law preservation requirements both before and after litigation has begun. 13. The State and Local Records Law, Chapter 109 RSMo, defines an agency as “any department, office, commission, board or other unit of state government or any political or administrative subdivision created for any purpose under the authorities of or by the state of Missouri.” §109.210(1) RSMo. 14. The Office of Governor is an agency pursuant to §109.210(1) RSMo and therefore has a duty and responsibility to abide by the State and Local Records Law. 4 15. Pursuant to the State and Local Records Law §109.270 RSMo “all records made or received by or under the authority of or coming into the custody, control or possession of state or local officials in the course of their public duties are the property of the state or local government and shall not be mutilated, destroyed, transferred, removed or otherwise damaged or dispo of, in whole or in part, except as provided by law.” (emphasis added) 16. The State and Local Records Law calls for oversight and directs the governor of Missouri that “no record shall be destroyed or otherwise disposed by any agency unless it is determined by the commission or board that the record has no further administrative, legal, fiscal, research or historical value.” §109.260 (1) RSMo. 17. No State and Local Records Commission or Board made a determination that the text messages sent and received among the governor and his staff, using Confide, were not public records. 18. A records commission or board, whether the Director of Records Management or the State Records Commission, cannot make the determination called for in § 109.260 RSMo. when the governor and the employees of the Office of Governor’s communications are immediately and deliberately destroyed. 19. The State Records Commission has promulgated rules that instruct that general correspondence of the governor are to be retained permanently and transferred to the Missouri State Archives. See Agency Disposition Schedule, General Retention Schedule, Administrative Operations, Title: “General Correspondence – Elected Officials and Department Directors”, Series 21530, Approved 6/9/2015. 20. The continued use of Confide and automatic communication destroying software for the governor’s general communications violates this Record Retention Schedule. 5 21. The State Records Commission has promulgated rules that instruct that general correspondence of the governor’s staff and/or employees of the Office of Governor are to be retained for three years. See Agency Disposition Schedule, General Retention Schedule, Administrative Operations, Title: “General Correspondence – Agency Personnel”, Series 21531, Approved 6/9/2015. 22. The continued use of Confide and automatic communication destroying software by employees of the Office of Governor violates this Record Retention Schedule. 23. On December 7, 2017, the Kansas City Star reported that Gov. Eric Greitens and his senior staff use a mobile phone application Confidethat automatically destroys text messages, after the messages have been read, leaving no record or trace of the message exchange, raising concerns that these actions violated Missouri Sunshine laws.1 24. Parker Briden, the governor’s press secretary, emailed the Kanas City Star writing “I don’t believe anyone has (Confide) downloaded on a state-issued device.” 2. This comment of behalf of the governor acts as a part admission and part misunderstanding that the Sunshine Law and State and Local Records law only cover state-issued personal phones, computers, and other devices. The Sunshine Law and State and Local Records Law covers any public business communications on any device, both state-issued and personal. 25. Press Secretary Briden’s comments constitute an admission that the governor and the some of the governor’s staff use Confide or similar software to communicate with one another for some purpose. 26. 1 2 The governor nor his staff have ever publicly denied using Confide or similar software. http://www.kansascity.com/news/politics-government/article188405944.html http://www.kansascity.com/news/politics-government/article188405944.html 6 27. After Attorney General Hawley opened an inquiry into the destruction of public records, Press Secretary Parker Briden once again commented that “transitory documents, drafts, nondecision making documents, records that are not necessary to sustain administrative functions, and materials that lack substantial administrative or operational value” do not need to be retained.3 28. The governor and his office however have not explained who makes the decision that the communications sent and received through Confide (and immediately destroyed) are transitory, drafts, or non-decision making documents and how this process is compliant with the State and Local Records Law and/or the Sunshine law. 29. If the communications are immediately destroyed, the Custodian of Record, State and Local Records commissions, boards, and other legal gatekeepers are prevented from making a judgment about the types of communications that are automatically destroyed and whether or not the communications should be preserved. 30. Because these communications among state-paid employees were automatically and purposefully destroyed, this court should draw an adverse inference for the purpose of this restraining order and/or preliminary injunction, that the destroyed communications are precisely the kind of communications that must be preserved. 31. Attorney General Josh Hawley, in the context of the Confide news story, was asked by the St. Louis Post Dispatch if text messages are public records. Attorney General Hawley answered that his and his office’s legal view was that text messages sent or received by state employees about state business are subject to the same rules as emails under the Sunshine law. 3 http://www.stltoday.com/news/local/govt-and-politics/new-lawsuit-seeks-to-stop-missouri-governor-from-usingsecretive/article_b22e94c7-6546-5eff-a93e-43f33fa6978a.html 4 http://www.stltoday.com/news/local/govt-and-politics/are-text-messages-among-government-officials-publicrecords-missouri-s/article_93f3e678-def4-5742-be3e-9c88f38e2ccb.html 7 4 32. Absent a TRO and/or preliminary injunction, Plaintiff and all Missourians will be immediately and irreparably harmed by the continued and automatic destruction of communications. 33. Defendants and employees of the Office of Governor, by contrast, would suffer no harm if they are simply required to communicate by text message and/or email in a way that doesn’t automatically destroy the communications. WHEREFORE, for the reasons set forth in this Motion, the Petition, and any Memorandum in Support of this Motion, Plaintiffs respectfully request that this Court enter a TRO and/or preliminary injunction prohibiting Defendants from violating the Missouri Sunshine laws and State and Local Records Laws by order that: 1) the governor and all Office of Governor employees are to immediately cease using Confide, Signal, and any other software designed to automatically destroy communications, to communicate with any other employee/s of Missouri about any topic; 2) the governor and all Office of Governor employees are to immediately cease using Confide, Signal, and any other software designed to automatically destroy communications, to discuss public, state and/or the governor’s business with anyone not employed by the state 3) an order compelling the defendants to identify all governor’s office employees who also used Confide or similar automatic record destroying software, at any time in the last year, to communicate with the governor and/or any other employee of the Office of Governor or the Governor’s staff; 4) an order restraining the custodian of records from allowing violations of the Sunshine and State and Local record laws, including compelling the custodian of records to immediately collect all digital communications, images, including text messages, made by the governor and employees of the Office of Governor, on any phone or computer, so that these messages can be secured for potential future review by the court. 8 Respectfully submitted, _______________________ Mark J. Pedroli, MBE 50787 PEDROLI LAW, LLC 7777 Bonhomme Ave, Suite 2100 Clayton, Missouri 63105 314.669.1817 314-789.7400 Fax Mark@PedroliLaw.com CERTIFICATE OF SERVICE The undersigned hereby certifies a copy of the foregoing was filed through the court’s Electronic Filing System to all counsel of record on January 30, 2018. _______________________ Mark Pedroli 9