Everyone texts - so why didn’t county search cellphones in probe?

Mecklenburg County failed to search cell phones for text messages in its probe of Pap smear errors at public health clinics in Charlotte, NC.
Mecklenburg County failed to search cell phones for text messages in its probe of Pap smear errors at public health clinics in Charlotte, NC. Manu Fernandez

In the wake of a public health crisis early this year, Mecklenburg County Manager Dena Diorio promised a full investigation into what went wrong.

Two county-run clinics had failed to notify women about abnormal Pap smears – a potential sign of cervical cancer – and Diorio pledged to prevent such errors from happening again.

But internal investigators assigned to look into the lapses did not check one of the common ways for government employees to communicate: text messages.

How could one of North Carolina’s largest governments not account for employees’ text messages?

Despite widespread agreement that texts are public records, Mecklenburg County doesn’t retain them, even though many employees use county-owned phones. Open government advocates say that practice has likely meant important public records have been destroyed.

At the height of the crisis in January, for example, a nurse assigned to investigate the lapses texted then-Health Director Marcus Plescia that she had found 25 additional cases where patients might not have received proper follow-up.

“Tomorrow try to determine how many have been already (followed-up) on and how many need (colposcopies),” she wrote.

The text is important because the question of how many women were affected remained unanswered for weeks. Even today, at least two county commissioners wonder if the number was larger than reported. Plescia later resigned amid questions about his response to the errors.

County officials found the text only after the Observer pressed them for records for nearly three months.

On June 30 and again on Aug. 16, the newspaper asked for Plescia’s text messages. The county said it could not produce the records because they no longer existed.

Then the Observer requested text messages from the nurse and three others who would likely have been texting Plescia.

Mecklenburg officials in July announced they were pursuing a solution to the gap in oversight and would seek proposals for technology to capture texts. But that won’t be in place until next year, Diorio said.

At least three commissioners say they are concerned by the current system, because it can allow officials to conduct government business secretly.

Commissioner Pat Cotham said the county’s inability to provide public information is troubling. “The public has a right to know,” Cotham said. “We failed. We have got to get this fixed.”

Commissioner Matthew Ridenhour agreed.

“Other communities have grappled with this and produced text messages” to comply with state law, he said. “I don’t understand why Mecklenburg County doesn’t have the same capability. We should be in compliance with the letter and the spirit of the law.”

State: Texts are public records

Diorio said she believes this is the first time public access to county text messages has surfaced as an issue since she became county manager nearly four years ago.

“There is not a lot of guidance out there” on how to preserve public access to text messages, Diorio said.

State officials, however, have been warning counties and other municipalities for at least five years to treat text messages as public records, said Sarah Koontz, the lead archivist with the N.C. Department of Cultural Resources’ Division of Archives and Records, which helps determine how long local governments should keep documents.

Koontz noted that email systems can easily help governments inexpensively comply with the public records law.

Public agencies without policies that direct employees to archive texts should consider prohibiting workers from conducting business via text, Koontz said.

Open government experts say that inconsequential messages can legally be deleted, but texts involving matters of controversy or key directives from agency leaders should be retained.

For now, Diorio said, the county has alerted workers that text messages related to government business are public records and should not be deleted. She said the county has not yet created a written policy.

“What we’re doing now on a go-forward basis puts us ahead of a lot of other governments,” she said. “We’re one of the few that are really doing that.”

Verizon, the county’s cellphone provider, does not keep messages that are more than seven days old and the county has never set up a system to capture the messages, Diorio said.

“We can’t say for sure if there was a specific text that was a public record we could provide it to you,” Diorio said. “That’s the honest truth about it.”

Why was text deleted?

Most of the texts obtained by the Observer that employees sent to or received from Plescia contained routine messages about schedules and meetings.

But a text from Julie Secrest, a county nurse, provides a brief update on her investigation. She had been assigned to compile a report and provide information to Plescia and a team of agency employees who were trying to respond to the mistakes.

The text says a “fast/dirty count” showed 309 patients had abnormal Pap smears from May 2016 to December, a period when the notification failures are concentrated.

Why weren’t those texts on Plescia’s phone?

Plescia did not respond to requests for an interview.

Diorio said she doesn’t know why Plescia deleted texts from his phone.

But she acknowledged that “we should have have been able to get them.”

If Plescia intentionally deleted the text from his phone to hide public information, he violated the state open records law, said Jonathan Jones, former assistant district attorney for Durham County and current director of the N.C. Open Government Coalition, which advocates for government transparency.

Government officials found guilty of purposefully destroying a public record face a fine up to $500 and could be convicted on a misdemeanor charge.

A spokeswoman for the Mecklenburg County District Attorney’s office said officials could not recall ever bringing charges against someone for destruction of public records.

It remains unclear when the text was deleted from Plescia’s phone, an important factor in determining if a public official violated the state open records act, said Frayda Bluestein, a professor of law and government at the UNC School of Government.

The length of time public officials and government agencies must archive texts depend on the content. Some records should be retained for years or even indefinitely, while others can be destroyed after a short time.

Lingering questions

Commissioner Jim Puckett said the failure to retain the text messages fits a pattern of secrecy surrounding the Pap smear mistakes.

Health department employees originally discovered the Pap smear lapses in December, but Diorio and Plescia were not informed about the problems until January. The county publicly acknowledged the mistakes in February after receiving inquiries from the Observer.

“Everything I have seen and heard from senior staff has been in defense of Plescia,” Puckett said. “I have beyond a reasonable doubt to believe there were bigger problems than what was reported.”

The county repeatedly said 185 patients were not contacted about abnormal Pap Smear results from May 2016 through December. “We doubled and triple checked” the number of women impacted, Diorio said. “We are very confident.”

Current and former health department employees, however, have alleged in letters, emails and calls to commissioners that the county intentionally revised the number of cases downward to help minimize the extent of the problems. A Feb. 20 email from Secrest to Plescia suggest the nurse believed as many as 300 patients did not get proper notification or follow-up.

If they were retained, text messages from Plescia and other county leaders could have helped answer questions about how officials managed the Health Department and the Pap smear lapses, Puckett said.

Commissioner Cotham said the text from Secrest to Plescia only adds to suspicions that commissioners and the public have not been given the full story about the Pap smear failures.

“I have heard from people within the Health Department there were more than 185 (cases),” Cotham said. “I believe we weren’t getting all the facts.”

The controversy offers a lesson in why transparency is vital, Cotham said.

“Government always is better when the windows are open and the light is coming in,” she said.

Clasen-Kelly: 704-358-5027