According to the policy, obtained by the Post-Dispatch through an open records request, "no staff member may use any self-destructing messaging application to conduct public business, whether it be on a state-issued or personal device."
The language was added on Jan. 17, more than a month after the Kansas City Star reported on the governor and his staff's use of the app on personal devices. But Parker Briden, the governor's spokesman, said it has always been office policy to retain messages related to public business.
"After baseless media reports to the contrary, and to dispel any notion that this was not the case, the office decided to explicitly reiterate its policy on records retention as it pertains to the use of messaging applications such as Confide," he said in an email.
Briden added that the revised policy also requires employees to refrain from using Confide for public business even if the communications are considered "transitory" and not required to be maintained under state law.
The document's release comes as Greitens, a Republican, fends off legal troubles on multiple fronts. Last week, he added St. Louis attorney Jack Garvey to his defense team as St. Louis prosecutors apparently expanded their criminal investigation beyond probing whether in 2015 Greitens photographed a woman with whom he had an extramarital affair and threatened to release it if she talked about him.
Greitens faces two lawsuits revolving around his controversial handling of State Board of Education appointments.
Attorney General Josh Hawley, a Republican, is investigating whether the governor's office broke the state's records-retention law. Two St. Louis-area attorneys are suing Greitens, seeking to forbid Confide use. A hearing on that case is scheduled for March 2 in Cole County Circuit Court.
One of the attorneys suing Greitens said the office's Jan. 17 rules fall short because the policy still allows employees to discuss personal matters using text-deleting apps.
"They're continuing to justify its use in the governor's office," attorney Mark Pedroli said. "They had an opportunity to restrict use ... and they didn't do it."
He said the public has to trust that employees are not discussing state business on Confide, because it is believed to be impossible to retrieve messages sent using the app.
"Why do you need to get on a super-secret app" to discuss private business, Pedroli asked.
Briden said it is impossible for the governor's office to altogether ban Confide.
The governor's office "does not, and cannot legally, dictate to staff how they can communicate on their personal devices during their personal time about exclusively private matters," he said.
A Cole County judge earlier this month declined to issue a temporary restraining order barring use of the app, but still said the case raised concerns.
“There are a whole bunch of open questions here,” Circuit Judge Jon Beetem said on Feb. 2, according to the Star. “We’re going to need to sort this out.”
Greitens associates had already indicated a shift in policy since the presence of Confide was first reported in December. On Jan. 3, Madden emailed the governor's staff, telling them "do not alter, shred, dispose of or otherwise destroy any records that relate to your official capacity with this office and the application Confide, the use of Confide, or any other application that does not retain messages."
The memorandum was issued in response to Hawley's investigation, which he launched on Dec. 20. Under Missouri law, it is illegal to destroy records that are the subject of a pending inquiry.
On Jan. 31, Michelle Hallford, the governor's custodian of record, wrote in an affidavit filed with the Cole County Circuit Court that the so-called "litigation hold" issued on Jan. 3 meant that employees would not be allowed to use the app for official purposes — similar to the revised Jan. 17 office policy.
Pedroli said he believes the office is violating the state law which states that an agency custodian of records "shall not transfer custody, alter, destroy, or otherwise dispose of the public record sought to be inspected and examined."
"The current policy, that you described, violates their obligations to preserve all Confide communications (or not to use Confide if they cannot preserve those communications) pursuant to statute," he said in an email.
Meanwhile, legislation which would address the digital tool is pending before lawmakers.
Rep. Gina Mitten, D-Richmond Heights, wants to prohibit members and employees of public governmental bodies from using software designed to send encrypted messages that automatically self-destruct to conduct public business.
The legislation is House Bill 1817.
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