McCaskill and Hawley argue over ACA, pre-existing conditions
Missouri Attorney General Josh Hawley portrays himself as champion of openness in government, proclaiming “the people of Missouri deserve an open, honest and transparent government.”
But Hawley, 38, is one of two statewide officials who do not use email on the job, making it difficult for voters — or his political opponents — to know how he conducts official business.
Hawley’s office told The Kansas City Star that the attorney general “does not find it necessary or helpful” to use email for state business. His spokeswoman, Mary Compton, noted that Hawley’s two predecessors, Democrats Chris Koster, 54, and Jay Nixon, 62, did not use email either.
In Missouri, Gov. Mike Parson, Lt. Gov. Mike Kehoe, Secretary of State Jay Ashcroft and Auditor Nicole Galloway all use email — and to some extent, texts — for official business, their offices told The Star.
Treasurer Eric Schmitt, like Hawley, does not, saying he prefers to conduct business in person.
Hawley, a Republican, is running for a U.S. Senate against Democrat Claire McCaskill in a close race that could determine control of the chamber.
Hawley’s aversion to email and other forms of electronic communication means that he’s had to find other ways to stay in touch with his staff while traveling to rallies and fundraisers for his Senate campaign, often far from his office in Jefferson City, Missouri.
While on the road, Compton said, Hawley conducts official business by phone multiple times a day, and always has remote access to his office’s computer network so he can draft, review and approve documents.
At times, he even goes so far as to have messages or statements read to him over the phone, rather than sent to him in writing.
“The Attorney General believes discussing important issues with his senior staff is the most efficient way to gather and convey important information,” Compton said.
First Amendment advocates say it’s concerning to see public officials such as the attorney general purposely avoiding the creation of public records while giving public “lip service” to government accountability and transparency.
“We would be concerned about any government official who goes out of the way to not create a record of the public business that’s being done,” said Tony Rothert, legal director for American Civil Liberties Union of Missouri.
Open records laws, also known as Sunshine Laws, are a legacy of the Watergate scandal that brought down former President Richard Nixon in 1974.
They resulted from an unorthodox alliance between conservatives and liberals who mistrusted government and felt that official records should be preserved and open to scrutiny.
Missouri’s sunshine and retention laws, which detail rules for preserving government documents and communications, are designed to make sure office holders are accountable to the public, Rothert said.
As attorney general, Hawley has championed the need to beef up Missouri’s open records law, also known as the Sunshine Law.
“Open records laws ensure that Missourians and the press can hold government accountable,” Hawley said at a press conference in January where he proposed ways to strengthen Missouri’s Sunshine Law. “It is time to update these laws so that they stay current with our ever-changing needs and technology in our modern world.”
The legislation Hawley proposed has yet to pass the state legislature. It would give his office subpoena power to enforce the Sunshine Law. It doesn’t directly address emerging technologies such as texting apps that automatically delete messages.
Hawley’s office maintains that current law already requires the retention and disclosure of most electronic communications. “Therefore, our focus was on obtaining the tools necessary to fully enforce those existing laws,” Compton said.
Hawley’s legislation was inspired by his efforts to investigate former Missouri Gov. Eric Greitens’ use of Confide, a texting app that deletes messages after they’ve been read.
The Star revealed Greitens and his staff were using the app late last year, setting off alarms for transparency advocates who worried it was being used to avoid compliance with the Sunshine Law.
Hawley initially said his office had no jurisdiction to investigate Greitens’ use of Confide. Then he reversed course and launched an inquiry that eventually concluded that there was no evidence of wrongdoing — in part because Confide ensured there was no evidence.
Hawley’s own office has a written policy that lays out which records officials must preserve and for how long. The policy makes it clear that electronic communications should be treated no differently than paper communications.
It was updated to ban the use of text-messaging applications such as Confide, noting that such apps’ auto-delete features would make it impossible for officials “to exercise reasoned judgment” about whether the messages must be retained under Missouri law.
Attorney General personnel “shall not use such an application to transact any public business,” the policy says.
Hawley’s office said the change was made as an addendum in early 2018 to prohibit the use of Confide and other auto-deleting apps. That would have come after he began investigating Greitens’ use of self-destructing text apps.
“The practice of our office has always followed the addendum, however, in light of what became public about the way the Greitens Administration was using messaging apps, we thought it appropriate to codify what our administration’s existing practices were,” Compton said.
Hawley himself does not use any such applications, his office said.
His office did not directly answer whether Hawley or his staff had previously used Confide, What’s App or other applications that automatically erase messages, saying only, “All records are disclosed and retained pursuant to law.”
The Springfield News-Leader reported in February that Hawley’s office has in the past allowed the use of Signal, an app that allows users to send encrypted texts and set timers on messages so they disappear.
Hawley wasn’t always reluctant to use email. He sent a few cursory emails from his official attorney general account early on in his tenure. And he did use it extensively as a law professor at the University of Missouri before he ran for attorney general. And he has a personal email account. But as he has learned the hard way, open records laws can be wielded by political opponents as well as by journalists or members of the public.
Hawley was sued in May 2016 over an open records request to University of Missouri for his emails and other documents from his time as a law professor there.
Former Republican State Rep. Kevin Elmer filed the lawsuit At the time, Elmer was backing Hawley’s opponent, State Sen. Kurt Schaefer, in a hard-fought GOP primary for attorney general. The case was dropped after Hawley won his party’s nomination.
After Hawley declared his intention to run for Senate against McCaskill the Democratic Senatorial Campaign Committee and American Bridge 21st Century, a Democratic Super PAC, filed multiple public records requests with the attorney general’s office and University of Missouri seeking correspondence, calendars and other documents.
Among Democrats, State Auditor Galloway was sued last year by a GOP-aligned nonprofit called Missouri Alliance for Freedom. The group alleges she violated the state’s open records laws because government-issued phones in her office automatically delete text messages every 30 days.
Galloway has said the lawsuit has no merit because any texts that are considered public records are not deleted. She points to a Sunshine Law investigation earlier this year by the attorney general’s office that cleared her of any wrongdoing.
Nothing in state law requires communications to be in writing, so Hawley and other public officials don’t have any obligation to write things down if they would prefer not to, said David Roland, director of litigation with the Freedom Center of Missouri, a libertarian nonprofit that advocates for government transparency.
“So, although this is certainly frustrating from the perspective of government transparency advocates, I don’t think it’s illegal,” he added.
Not everyone thinks government officials’ emails and texts should be considered public records.
Jason Grumet, founder and president of the Bipartisan Policy Center, likens the public release of such “informal” digital communications to tapping government officials’ phone calls or taping their private conversations.
“In today’s digitized world, the distinction between a text message and phone call is an illusion,” Grumet said. “I think because it’s displayed in written form, that conjures the notion that it’s a public record, but in many cases text messages is closer to tapping somebody’s phone call than it is to accessing public records.”
Grumet argues that releasing emails and texts via open records laws cripples the ability of officials to do the often-controversial work of dealmaking and compromise.
Rothert countered that emails by state legislators, members of Congress and their staffs aren’t subject to open records laws anyway. And most of Hawley’s internal communications as attorney general likely would be exempted from public release because they contain legally privileged information about ongoing investigations or cases.
“It’s not just an open book that he has to produce every record that’s been created, but by the same token public statements that are made, things that are more political in nature, don’t fall under those exemptions,” he said.
“It does raise questions about why someone feels the need to be so evasive.”