Should Greitens' social media be subject to open records law? Critics, AG disagree

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JEFFERSON CITY — It had all the trappings of an official government function.

Gov. Eric Greitens was in his Capitol office on Thursday, sitting behind a gleaming wooden desk in a leather chair featuring Missouri’s state seal. Taking questions from Missourians about his recently announced tax cut plan via Facebook Live, Greitens encouraged constituents who couldn't attend his state tour in person to comment.

"I also know that not everybody can come out to see us live, so we wanted to take a little bit of time to answer questions here with all of you on Facebook," he said. "And the reason why we’re doing that is it's important for everybody to remember, this is your money …"

It may have looked like government business. But Greitens insists it was not.

Thursday's town hall was conducted on what he says is his personal Facebook page, not the "official" government account he created in September. The governor's office says his social media accounts — the Twitter and Facebook he relies upon to put out his message — are not public records.

And Attorney General Josh Hawley's office agrees.

In a letter this week, the attorney general's office said it would not require Greitens to turn over records related to his social media accounts — private messages, names of users who were blocked or emails used to create the accounts.

Those accounts, the attorney general's office contends, are private and not subject to the Sunshine Law.

Transparency advocates worry this is a troubling precedent for a governor who has demonstrated a penchant for secrecy, ranging from his use of an app that deletes text messages after they've been read to his advisers' use of private email accounts during the transition.

Greitens' use of social media could be another way he is skirting transparency, said Katie Fallow, a senior lawyer at the Knight First Amendment Institute, a Columbia University nonprofit that advocates for freedoms of speech and the press.

"It's analogous to public officials using personal email," Fallow said. "Public officials sometimes use their personal email to conduct official business but that doesn't mean that they’re then relieved of their obligations under whatever the relevant laws are."

Hawley previously appeared to agree with Fallow, saying during a December press conference that electronic messages on private devices still could be deemed public records.

But Hawley seems to have backtracked on that when it comes to electronic communications through private Twitter and Facebook accounts.

"Campaign and/or personal social-media accounts are not subject to public records laws unless they are used to transact public business," Hawley spokeswoman Loree Anne Paradise said. "To date, no evidence available to us indicates that those accounts are being used to transact public business."

The governor's office has rejected attempts by the Missourian to access certain records associated with his Twitter and Facebook accounts.

But after those initial inquiries were made in August, his office established new Twitter and Facebook accounts and declared that they were now the "official" social media platforms for the administration. Since their creation, the new accounts occasionally have been used to share press releases.

Paradise said those accounts would be subject to the Sunshine Law.

Greitens' original Facebook page has more than 442,000 followers. His "official" page has 2,000.

Refusing to release records related to the governor’s social media accounts speaks to a "pattern of deceit" within the state, said Rep. Mark Ellebracht, a Liberty Democrat who is sponsoring a bill that would update the Sunshine Law to address the retention of electronic records and deem an agency or official’s personal social media pages as public records.

"What I want to avoid now is having a government that's shifted from a government of openness and transparency to a government that does 90 percent of its policy discussion on third-party-hosted websites where people can be blocked and messages can be hidden and information can be controlled," Ellebracht said. "That’s a way of silencing the voice of the people."

Blocked by Greitens

The attorney general's letter came in response to a Sunshine Law complaint filed over Greitens' denial of a records request seeking the number of users he blocked on his social media accounts, his history of direct messages and the emails used to create the accounts.

The original records request was denied in part because Greitens had created his "@EricGreitens" Facebook and Twitter accounts before he had assumed office, said Sarah Madden, special counsel for the governor's office. Therefore, she argued, "neither are considered official state accounts."

The extent to which Greitens has blocked users on social media remains unknown. A handful of people have spoken up, saying they were blocked after they expressed disagreement with the governor on certain policies.

Blocking a user restricts their ability to interact with content. On Twitter, a blocked user is prevented from following an account, seeing its content or sending direct messages. On Facebook, blocked users cannot send a message to the user or comment on posts.

These blocked users, therefore, have no way of participating in Greitens' Facebook town halls.

If a government official is using social media to conduct official business, like soliciting comments from constituents or making important announcements, Fallow said, "public officials should not be able to exclude critics from those important forums."

Fallow's organization is suing President Donald Trump for blocking people on Twitter.

"The government is arguing in that case that it is not subject to the First Amendment, because it's his personal account that he established before he became president," Fallow said. "And we argue in response that even though he established it before he became president, since he has become president he and his staff has operated it as an official account."

Public officials should use social media to connect with constituents, Ellebracht said. But they shouldn't "arbitrarily lock somebody out of that process."

"They have a right to petition their government just in the same way that everybody else would," Ellebracht said. "It’s fundamentally a First Amendment right — either we have it or we don't. (The governor) doesn't get to decide if I have it."

Greitens isn’t the only governor who has faced these types of questions about his social media recently. But others, specifically those in Maryland, Kentucky and California, have come to a different conclusion about public access to their accounts and revealed they were blocking hundreds of users on their Facebook and Twitter.

Jonathan Groves, communications professor at Drury University and president of the Missouri Sunshine Coalition, said Missouri's Sunshine Law hasn't kept up with changing technology.

"That's one of the issues that you're facing with that refusal, because they’re reading it purely by the letter of the law, which doesn't explicitly talk about social media," Groves said.

But according to the Missouri secretary of state's records retention guidelines, social media sites are subject to the state's Sunshine Law. It is the responsibility of the agencies, rather than the social media sites, to maintain related records.

The guidelines specifically address the use of personal social media accounts, warning: "It is strongly recommended that agencies advise their personnel to not use their personal accounts to conduct state or local business. Using a personal account does not nullify state records law."

David Roland, director of litigation with the Freedom Center of Missouri, a libertarian nonprofit that advocates for government transparency, said he thinks elected officials still deserve some degree of privacy.

Just because they are public officials or government employees, Roland said, that doesn't mean their social media accounts should be an open book.

"The potential exception to that," he noted, "is if there is a taxpayer-funded assistant who is managing those accounts. There's at least theoretically the possibility that they're creating records that law requires to be retained, and if they're not being retained that's one type of violation."

The governor's office has said that Parker Briden, Greitens' taxpayer-funded press secretary, maintains the "official" Twitter and Facebook accounts and is responsible for "maintaining (the governor's) official social media content."

But for the first nine months he was governor, Greitens had only one set of social media accounts. The "official" accounts weren’t created until September, and the governor's office has thus far refused to clarify if Briden was running — or continues to run — the accounts that Greitens relied on for months.

In April, the Associated Press reported that Briden has shot some of the videos that the governor was posting on his social media sites. On Briden’s Twitter, he links to the "unofficial" Greitens Facebook page.

The governor's office also declined to say whether any public funds were being spent to create content for Greitens' social media, including money spent on camera equipment, editing software and lighting.

Left to the courts

After a records request regarding Greitens' social media accounts in August, the governor's office posted a link on its website to guidelines on how it moderates its social media platforms. It also launched the new "official" Facebook and Twitter accounts.

The new accounts also replaced links to his old social media accounts on the state's official website.

The new accounts are explicitly named "Governor Eric Greitens," link to the office's official website and have the bio "Official Account of the 56th Governor of the State of Missouri." Greitens' original social media listed his name as "Eric Greitens" and linked to his campaign website.

The governor's office sparingly has used the new accounts since their creation, occasionally posting links to news releases and updates. A handful of users who were blocked on Greitens' original social media have shared that they haven’t been blocked on the new accounts.

However, Greitens has not unblocked those users on his old accounts, and continues to hold Facebook Lives on his "unofficial" account where blocked constituents still cannot participate.

The question of whether the governor's social media should be considered public records will ultimately have to be decided by the courts, Groves said.

"What it's going to take is a (legal) challenge that tries to connect the provisions of the law with regards to email to social media, because that hasn’t been done yet," he said. "And until that’s done, you're in this legal gray area, because no one has made a decision on it. It's really going to take taking it to court and seeing how that shakes out in a legal setting in terms of how is that determined under the letter of Missouri law."

Tessa Weinberg previously reported on the governor's social media accounts for the Columbia Missourian.

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