This one should make open government advocates stand up and take notice. Several recent reports, including this one in the St. Louis Post Dispatch, suggest that Missouri’s governor – and his staff – have downloaded the app Confide to their personal cellphones. The app “deletes messages and prevents recipients from saving, forwarding, printing or taking screenshots of messages.”
It brings government transparency – quite literally — to the edge of the electronic abyss.
The problem, of course, is that public officials regularly use their personal cellphones to conduct the public’s business. In Kentucky, the problem is compounded by the fact that in 2015 the attorney general ignored the overwhelming weight of legal authority – not to mention the unambiguous language of the law — and on his last day in office declared that communications about public business conducted by public officials on their private devices are not subject to the state’s Open Records Act.
You can read more about the attorney general’s decision here and about the Bluegrass Institute Center for Open Government’s recommendations for legislation to address the problem here. No more compelling argument in support of the need for legislative revision to the 40 plus year old Open Records Act — that was last substantially revised in 1994 — can be made.
To the extent it is possible to do so, the law must keep pace with technology.
In the meantime, Kentucky’s officials should be on notice that similar conduct in this state puts them at risk of prosecution for tampering with a public record.