Texts Are Public Records But Access To Them Remains Tricky

As Governor Roy Cooper's newly installed appointees raced to get a grip on state government this January, the acting head of North Carolina's Division of Motor Vehicles told his boss that the agency was "a wreck."

Around the same time, a lawyer involved in litigation over who should have the authority to hire and fire employees at the Department of Public Instruction gave the new attorney general a heads up that the school superintendent was going to intervene in the case. And North Carolina's long-time state auditor urgently sought a meeting with the new governor to explain a damning assessment of state and county social service agencies.

During two weeks in January, those quick messages, along with notes of congratulations and requests for meetings, flowed via text messages to and from the mobile phones of North Carolina's top elected and appointed officials.

Those short messages, along with the occasional attached image or document, are public records and help provide a picture of what it takes to run a state that is home to 10 million people. But following inquiries from a coalition of news organizations including The Associated Press, it's clear that getting access to those public records depends largely on the goodwill of those department heads, and the requests took many officials by surprise.

Environmental Quality Secretary Michael Regan, for example, initially responded to a public records request for two weeks of his text messages by saying he didn't have any for the time period involved. He revised that assessment only after officials in Cooper's communications office asked others to search their phones. Several were identified, including photos of the secretary posing with former Governor Jim Hunt and others after taking the oath of office.

Without ready help from phone carriers or a program designed to make the process efficient, state officials say that providing text messages in response to public records requests is cumbersome and time-consuming.

"The time it took to generate the texts for you was substantially more than it would be for an email or giving you a copy of a written memo," said Attorney General Josh Stein. The state, he said, needs to figure out how to adapt in a world where work habits of the modern office have evolved more quickly than the state's public records policy.

"The work we do is the work of the public, and the work we do is owned by the public," Stein said. "The public has a right of access to it because that's transparency, that's how you hold a government accountable. But we have to figure out how that works in a modern world."

FOLLOW THE RULES

It's impossible to know how many text messages are pinging from phone to phone regarding the public's business every day. That's in part because there's no firm count of how many state-owned mobile phones are deployed across North Carolina government, according to the state Department of Information Technology. And there isn't a firm reckoning of how many state employees might be using private devices, private messaging on social media accounts and other services to keep in touch with constituents, vendors and fellow bureaucrats.

North Carolina's public records law, which was first drafted in the 1930s, certainly covers those short messages even if lawmakers of the Great Depression era or those who undertook more recent revisions didn't anticipate how much the office workers of 2017 would rely on text messaging. But even though texting has become somewhat ubiquitous, it is relatively rare to see those messages turn up in requests for written material about how public business is conducted.

That's why a group of newspaper and television stations organized at the behest of the North Carolina Open Government Coalition decided to explore how state and local officials would respond to public records request for text messages sent to and from senior leaders for the period spanning Jan. 9 through Jan. 20.

The result: Of 19 state departments queried, all were able to provide some sort of answer, even if it was just that their top officials didn't use text messaging. Some provided transcripts or detailed copies complete with keys to who was involved in each conversation, while others simply provided images of the back and forth with little context.

None disputed the records should be available to the public.

"Need appt today with Kristi Jones in gov office to deliver HHS report," State Auditor Beth Wood texted two deputies on Jan. 9, making clear she wanted to personally brief Cooper's chief of staff on the results of an audit showing lax oversight of county social service agencies due for release three days later.

Even though that message and the exchange that followed were relatively short and not likely to arouse controversy, the request to provide them did pose a problem for the auditor's staff. In a department all about following rules and procedures, there is no policy or procedure for what to do if someone asks for the auditor's texts.

"I thought it would have been buried in our IT policies or our email retention policies," said Tim Hoegemeyer, Wood's general counsel. When he looked for guidance, the policy cupboard was bare. "We'll have to add that," he said.

That was a common refrain from employees across state agencies, many of whom said the coalition's request was the first time anyone had explicitly asked for texts from their senior leaders.

Still, it should not come as a surprise that members of the public, particularly journalists, came calling. Text messages to and from Detroit Mayor Kwame Kilpatrick provided the underpinnings for a Pulitzer Prize-winning series in 2008 by the Detroit Free Press that showed Kilpatrick lied under oath and used public resources to cover up an affair with his chief of staff.

Closer to home, text messages among various high-ranking administration officials in 2014 allowed the Charlotte Observer and The News & Observer of Raleigh to report that former Governor Pat McCrory had personally intervened to help a key campaign donor hold onto a prison maintenance contract and illustrated that at least some of the governor's advisers had objected.

But getting those messages relies on government officials to accurately account for how they use their phones.

"You basically have to rely on the people who are in office to follow the rules," said Danny Lineberry, Cooper's acting secretary for Information Technology.

NO GOOD SOLUTION

Lineberry, himself a former reporter, said that his department began searching for a technological solution that would help ensure state agencies met their obligations with a minimum of hassle in January, after the flurry of requests from reporters on this project were filed.

As of yet, he hasn't found one.

Both iPhone maker Apple and the authors of the Android operating system for phones provide instructions for siphoning the messages off of an individual phone, but it's unclear if those methods would work in all circumstances or be efficient for use across an organization as big as state government.

When the coalition's request for his predecessor's text messages came to his department, Lineberry's first thought was to ask the cell phone carrier to provide a readout from the company's servers rather than searching the phone itself.

"Not without a subpoena" came the reply from the phone company.

Both Verizon and AT&T, the two major mobile phone providers with which the state does business, have services they will sell governments and large businesses that log messages as they come and go. But the state would need to request that service up front and, of course, pay an extra fee.

In addition to the Department of Information Technology's efforts to find a technological solution, Stein said his office was in the early stages of revising a guide on public records in consultation with the coalition and the North Carolina Press Association. That guidance will likely not only include text messages but private messages sent via social media platforms like Twitter and Facebook, and applications built expressly as text messaging alternatives, such as GroupMe or WhatsApp.

DELETING MESSAGES

"The way we're communicating is evolving," said Sarah Koonts, North Carolina's state archivist, pointing to recent news reports that members of the President Donald Trump's administration had used an application called "Confide" to communicate. Using that application to send text-message-like notes may be an end-run around federal records retention policy because there's no easy way to archive those exchanges for future reference.

Guidance issued by the State Archives, she said, seeks to balance the public's right to know and the organizational need to let go of material that may have little historical value.

There's no question that text exchange is public record, but while state government emails are subject to a line of executive orders dating to Gov. Mike Easley's administration that requires they be archived for at least five years, text messages are not.

"It's really going to be fact-specific based on the content of the text message," said Jonathan Jones, a lawyer and open government advocate who heads the North Carolina Open Government Coalition.

Stein said there's no question that state agencies have to fulfill those requests, even if the technology to do it efficiently doesn't quite exist yet.

"When this first law was first written, it was in the '30s or the '20s of the last century. It was about a paper file, because that's how the world existed. We no longer live in a paper world. We need to figure out how we continue to live up to the aspirations of the law in a digital world."

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Reporters Emery P. Dalesio of The Associated Press, Steve Riley of The News & Observer of Raleigh, Frank Taylor of Carolina Public Press, Kymberli Hagelberg of the Greensboro News & Record, Ann McAdams of WECT, Doug Miller of the Charlotte Observer, and Jay Hardy of Time Warner Cable News contributed to this report.