North Carolina law is clear: Text messages exchanged by government workers are public records.
But Mecklenburg County doesn’t retain texts from county cellphones and officials’ personal devices – a practice that likely destroys public records in violation of state law.
On June 30, the Observer requested text messages sent or received by Health Director Marcus Plescia in January. That’s when Plescia initially learned about errors at county health clinics involving cervical cancer screenings for low-income women.
Fallout from the mistakes led to Plescia’s resignation, and questions remain over his response to the lapses.
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Mecklenburg officials last week said the county could not fulfill the newspaper’s open records request for texts because Verizon, the county’s cellphone provider, does not keep messages that are more than seven days old.
If Plescia’s texts from January contained information related to county business, the texts are public records, according to Jonathan Jones, director of the N.C. Open Government Coalition, a nonpartisan group that advocates for public access to government records and meetings.
If those types of texts were not saved, Jones said, he believes the county violated the state’s public records law.
“It’s really unacceptable for an agency to say, ‘Well, our provider can’t give them to us so we can’t give them to you,’” Jones said. “It’s just incredibly disappointing that we still have government agencies that don’t seem to be taking seriously their responsibility to capture these and record these.”
In a lawsuit, Jones said, the courts could order the county to comply with the law. If it failed to do so, the county could be held in contempt of court, he said.
If a judge determined public records were willfully withheld, individuals could face criminal penalties, Jones said.
‘No way to defend it’
In response to questions from the Observer, Mecklenburg County gave a statement from its attorney, saying the county “is aware that a text message may be a public record.” The statement said “the county currently does not have the ability to capture text messages.”
But the North Carolina Association of County Commissioners has told members that officials’ text messages and instant messages fall under state open records law and should be preserved.
The N.C. Department of Natural and Cultural Resources collects state and local records and archives the information to document history and protect citizens’ rights.
The agency first issued a report in 2012 advising government officials how to capture and preserve texts and instant messages and updated the information in December 2016.
It says North Carolina law defines public records by their content, not by their media or format.
Agency officials in the past have recommended that governments forward text messages and instant messages into workplace email accounts, where they could be printed or retained electronically. If public officials rely on cellphone companies to provide the information, officials say, they should arrange their contracts so records are saved to comply with the law.
Some smartphone devices allow automatic forwarding of such messages to email. Other instant messaging software can also capture the information in a text file and provide storage.
Two members of the county’s Board of Commissioners – Democrat Pat Cotham and Republican Jim Puckett – said the county must take steps to comply with the law.
“There are ways to be non-transparent,” Cotham said. “That’s not a good thing. There’s no way to defend it.”
In an email sent to Mecklenburg commissioners on Monday, County Manager Dena Diorio said money has been set aside to “purchase a product that will hopefully resolve this matter.”
Spokesman Rick Christenbury said the county has budgeted $298,000 for technology improvements that will include the ability to collect and store text messages. The county hopes to solicit bids from vendors next month, he said.
Other N.C. government agencies already provide public access to text messages.
Earlier this year, a group of newspapers and television stations organized by the N.C. Open Government Coalition sought texts from various local governments and state agencies to test their compliance with the law.
The city of Asheville, for example, responded with images of Mayor Esther Manheimer’s texts. Greensboro Mayor Nancy Vaughan loaded her text messages into Gmail so they could be provided.
Open government experts say that inconsequential messages can legally be deleted without a problem. But texts involving matters of controversy or key directives from a mayor or city manager should be retained, they said.
Mecklenburg Commissioner Bill James said many text messages officials send have no value to the public.
James said he asked county officials about public access to text messages earlier this year. They told him the county doesn’t keep track of text messages and didn’t have any immediate plans to start, James recalled.
“Text messages are uncharted territory,” for Mecklenburg County, James said. “We are at the place with texts that we were with email in 2000.”
Metzler: 704-358-5433, @crmetzler