A conservative non-profit group claims Democratic State Auditor Nicole Galloway has violated Missouri’s Sunshine Law by allowing public records to be destroyed.
Final arguments were made Tuesday in a lawsuit that was filed over a year ago. Because presiding Judge Jon Beetem of Cole County Circuit Court in Jefferson City directed the parties to file further written arguments, the case will likely not be resolved until October.
Missouri Alliance for Freedom originally brought a suit in 2017 after it claimed Galloway’s office delayed responding to its request for records and allowed electronic information to be deleted.
Barbara Wood, Galloway’s senior legal, counsel initially provided documents to the non-profit and testified later in 2017 that she’d provided Missouri Alliance for Freedom with 14,000 records. None of those records were from Galloway’s cell phone.
The Sunshine request originally sought all records of communication Galloway’s office had sent and received since she had served is auditor in 2015.
Those requests, which were the forerunners to lawsuits, began after Galloway’s office subpoenaed the Department of Revenue about income tax refunds. Missouri had a problem with delivering late refunds dating back several years. Improvements have been made since.
Galloway, who is running for reelection in November, exchanged heated public statements with then Republican Governor Eric Greitens over the refunds. Greitens resigned from office this past June while entangled in numerous controversies.
Missouri Alliance for Freedom, like a Greitens aligned nonprofit called A New Missouri, is classified as a 501 (c) (4), which means it does not have to report its donors.
The legal team working for Missouri Alliance for Freedom (MAF) is Graves Garrett, which represented the governor’s office when Greitens was being investigated for possible impeachment by a special legislative committee. The law firm is headed by Todd Graves, who is chairman of the Missouri Republican Party.
The firm also represented southwest Missouri’s Greene County in an effort to block Galloway’s attempt to conduct an audit after her office received whistleblower complaints that the county had misused taxpayer money.
Unhappy with the delivery of records from Galloway’s office, MAF filed a complaint with Republican Attorney General Josh Hawley’s office in December of 2017. The nonprofit claimed Galloway had withheld records from her cell phone, specifically text messages.
Hawley’s investigation cleared the auditor’s office of any violations, noting its use of text messages was for logistical purposes that didn’t require for text messages to be retained. The investigation concluded that the auditor’s office didn’t use Confide or any other type of app for the purpose of deleting text messages.
Earlier this year, Missouri Alliance for Freedom revised its lawsuit, contending Galloway’s office had improperly skirted delivery of text documents by delaying response until after the default 30-day automatic delete setting on its phones had erased the texts.
The revised complaint led to testimony by a forensic expert and arguments from both sides of the lawsuit Tuesday.
Graves Garrett attorney Edward Greim claimed Paul Harper, the general counsel in Galloway’s office committed a knowing violation of allowing records to be destroyed when, after receiving a request for documents, he reset the automatic delete setting on his phone to one year from 30-days but failed to advise others in the office to do the same.
He said the office failed to take steps to preserve text messages by failing to take screenshots of texts and by neglecting to have the office’s IT Department preserve text messages on phones.
Greim also suggested staff phones in Galloway’s office were set up to destroy messages quickly because their delete settings had been changed to 30-days. He noted that the forensic expert, Nathan Little of Gillware Digital from Madison, Wisconsin, testified that the communications devices being used, iPhones with Apple operating systems 9,10 or 11, had a default setting at “forever”, not 30-days.
Greim said general counsel Harper was likely responsible for setting the phones at 30-days, although he admitted there was no way to know without further testimony from staff. He contended that Harper had worked to delay the release of cell phone data while text messages were being deleted after 30-days on each device.
Greim stated that there had been a knowing and purposeful destruction of evidence in the form of text messages. He asked the judge to impose a $5,000 civil fine on Auditor Galloway’s office and direct the office to cover Graves-Garrett’s attorney fees.
Attorney Joel Anderson, representing the Auditor Galloway’s office, first asked to introduce Attorney General Hawley’s investigation into the case as evidence. Judge Beetem denied it admission as hearsay.
He then stated that Harper wouldn’t have been involved in the process of determining the delete settings on cell phones in his function as general counsel.
Anderson said MAF’s request for all communications was excessively broad. “This is a case of using the Sunshine Law to request the world and let’s see what we can find in a grain of sand,” said Anderson.
He suggested that text messages wouldn’t contain records of the business of the Auditor’s office but admitted it could fit into the 16 categories of information Missouri Alliance for Freedom was seeking.
Anderson said the Auditor’s office supplied screenshots of text messages because the actual documents were not obtainable. He noted the office provided 65,000 records and 45,000 pages documents as quickly as possible at no charge.
The Auditor’s attorney suggested it was unreasonable for the Alliance to say it didn’t receive text messages in the form that it wanted. “It doesn’t fit any of the properties of the Sunshine Law,” Anderson said.
Cole County Circuit Court Judge Beetem, who is hearing the case in Jefferson City instructed both sides to file further written arguments in 30 days.