WBTV filed a lawsuit against the Union County Sheriff’s Office and Sheriff Eddie Cathey on Wednesday. The lawsuit seeks access to text messages related to public business allegedly sent and received by UCSO deputies that the station’s lawsuit alleges have been deleted.
The station first made its request for the text messages and other records in January 2017, according to the lawsuit.
The complaint was filed Wednesday in Union County Superior Court. According to the lawsuit, a WBTV reporter requested text messages, emails and other written communication sent and received by Cathey and several deputies.
According to the lawsuit, the UCSO provided emails in response to the station’s request but did not provide any text messages.
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Attorney Bill McGuirt, who handled the UCSO’s response to WBTV’s request until his retirement at the end of June, is quoted in the lawsuit as offering several different reasons why the sheriff’s office could not produce any text messages in response to the station’s request.
According to the complaint, McGuirt first told the station that the cellphone provider used by the sheriff’s office – identified elsewhere in the complaint as Verizon Wireless – does not keep any text messages for more than five days.
The lawsuit says McGuirt offered a different response after an attorney for WBTV pointed out that the North Carolina Public Records Act and rules set by the State Archives of North Carolina require public agencies to retain text messages for more than five days.
“On March 30, 2017, Mr. McGuirt responded, by letter to WBTV reporter Nick Ochsner, stating ‘I have confirmed that we have no text messages or instant messages applicable to your request.’ He again offered no explanation of what steps he had taken to confirm that no such messages existed,” the lawsuit says.
In an email from McGuirt to a lawyer for WBTV attached to the station’s complaint, the sheriff’s attorney claimed deputies were discouraged from using text messages to conduct public business.
But records obtained by WBTV in a separate but related request to a different agency uncovered at least eight deputies – including two lieutenants and two captains – using text messages to conduct public business.
Once McGuirt retired from the sheriff’s office, another lawyer for the county wrote to a lawyer for WBTV to say deputies retain text messages related to criminal investigations but delete other messages.
The lawsuit filed by WBTV claims that practice violates the state’s public records law.
In the complaint, attorneys for WBTV say the request was “part of an inquiry into Defendants’ practices involving investigations of reported child sexual assaults.”
According to the complaint, the station was also investigating “certain decisions made by UCSO in connection with charges against a specific individual.”
Later passages in the lawsuit specifically discuss charges brought against Kristy Brooks, a Union County mother who was arrested on a felony child abduction charge after having been in hiding with her daughter for more than a year.
Brooks – who was already wanted by UCSO for an outstanding civil contempt of court order – was arrested on a criminal warrant obtained by the UCSO. District Attorney Trey Robison later chose to not present that charge to a grand jury and chose, instead, to indict Brooks on one count of felony obstruction of justice.
According to the complaint, the UCSO sought its criminal warrant against Brooks just days after she gave an interview to WBTV while she was in hiding.
“Plaintiff is informed and believes that between January 1 and January 31, 2017, Defendants and certain of their employees created, sent, or received text messages regarding felony charges they were considering bringing against Kristy Brooks,” lawyers for WBTV wrote in the complaint.
The lawsuit claims that text messages related to the possibility of bringing criminal charges against Kristy Brooks were deleted in violation of the public records law.
“Plaintiff is informed and believes that such text messages responsive to its request existed in the possession and custody of Defendants and were unlawfully deleted from cell phones of Defendants’ employees without copies being made and retained as required by the Public Records Law,” the complaint says.
The complaint accuses the UCSO of failing to establish systems and policies for retaining and preserving text messages that are not criminal investigation records and are also not “transitory,” or messages that retain little to no value after they’re sent.
The lawsuit asks a judge to schedule an immediate hearing on the matter, allow WBTV to conduct discovery and order the UCSO to permit the station access to records responsive to its request, among other things.
A spokesman for the UCSO did not respond to an email sent Wednesday afternoon seeking comment in response to the lawsuit.