Filling requests for text messages "a learning process" for local governments
Posted March 13
Raleigh, N.C. — As Wake County Commissioner Sig Hutchinson traded text messages with former county school chairman Tom Benton in January, the pair groused about the latest public pronouncement from Sheriff Donnie Harrison.
Benton took exception to Harrison suggesting the Wake County Public School System should create its own police force rather than rely on school resource officers supplied by the sheriff’s office and local police departments.The "sheriff (is) at it again. Bypass policy makers and go straight to the press," Benton wrote. Hutchinson replied, "Yep exactly what I talked with him about last time as well."
Those were among the dozens of messages Hutchinson and other Wake County commissioners sent or received from Jan. 9 through Jan. 20 and released in response to a public records request made by a group of newspapers and television stations organized by the North Carolina Open Government Coalition. The group made similar requests of nine different local governments across North Carolina as well as 19 different state government officials, whose responses are detailed in a separate story.
Text messages fall within the purview of North Carolina's public records act, which specifies that all "documents, papers, letters, maps, books, photographs, films... or other documentary material" produced in relation to public business should be disclosed in response to requests from citizens.
While responding to records requests for email and paper files has become a standard part of doing business for most local governments, inquiries seeking text messages have been less frequent and, for many, harder to fulfill.
Text messaging records offer glimpses into how government works "We're all going, 'Well, what is this all about?'" Hutchinson said in a recent interview after getting the coalition's request for his messages.
He quickly came to the conclusion that, while he had never been asked for copies of the short exchanges he sent from his phone to other county officials, they were, in fact, public records. His biggest question soon became how to turn them over to reporters.
"I was clueless," Hutchinson said. "It wasn't hard once you knew how to do it, but I had no idea how to do it."
Other local public officials were less forthcoming. In Mecklenburg County, for example, commissioners and their staff were not able to produce any text messages during the five weeks between the coalition's request and the time this report published.
In New Hanover County, all members of the Board of Commissioners responded to the coalition’s request except Jonathan Barfield. County Manager Chris Coudriet said that he discourages commissioners from using text messages because they’re hard to archive.
“Our basic standard is that if we create something, than it in and of itself is a public record, so that’s why we discourage and don’t endorse using text message to conduct county business,” Coudriet said.
Text messages are an efficient mode of communications government and business executives use to arrange impromptu meetings, check on small business details or share a nugget of information like a phone number. Although they have been around for years, texting has become more widespread along with smart phones with real or virtual keyboards that make tapping out a note easy.
Government transparency advocates, state officials, including Attorney General Josh Stein, and most local officials interviewed for this story said there's no doubt text messages are public records, even if public officials sometimes treat them as private conversations.
Hutchinson, for example, explained his exchange about the sheriff had to do with a desire to discuss matters internally before speaking to the press.
“We can all improve our communication, internal as well as external. I encourage the sheriff to work with us. There are solutions here,” Hutchinson said.
That wasn’t the only unguarded exchange among the text messages supplied by Wake County officials.
During one January meeting of the North Carolina Association of County Commissioners, Wake County's intergovernmental affairs manager texted Wake County Commissioner John Burns to describe the proceedings as "a cluster," and the pair went on to critique how the chairperson was managing the proceedings.
“Chris (Dillon) and I attended the session, but we were sitting in different rows,” Burns said in a recent interview by email. “I remarked to Chris that the chairman of the association ‘didn't know Roberts Rules (of Order),’ because he was allowing debate on more than one amendment to a main motion at a time, and it was confusing to follow.”
Burns said text messages are just one of the tools he uses to communicate with fellow board members, county staff and other elected leaders about county business.
“For the most part, I use texting like anyone else would, to confirm meetings, inform fellow commissioners of events, ask quick questions. Detailed conversations are more appropriately handled in person or by phone,” Burns said.
Wake County leaders said they are currently updating their public records policy and plan to include text messages. They are also working to streamline the records collection process, improve communications and document tracking between the parties involved. The policy and process revisions should be completed this summer.
Even when text messages are relatively benign, public officials say they struggle finding a good way to share them.
The City of Asheville, for example, responded to requests with images of Mayor Esther Manheimer's texts rather than searchable copies, which is common with email. Asked about the city's ability to provide texts, Ben Farmer, a business services specialist with the city manager's office, confirmed the technical limitations involved.
"The City does not currently have software that would preserve or retrieve text messages," Farmer said in an email.
According to technical forums and FAQs posted by their makers, there are ways to download text messages from Apple's iPhones as well as phones using the Android operating system, although it's not clear whether the processes described would work in all situations.
At least one local official, Greensboro Mayor Nancy Vaughan, found a way to load her text messages into Gmail, a popular email service, so they could be provided in response to the coalition's request.
More than one government agency made clear that, while their elected leaders used text messages on government business, those texts are regularly purged.
New Hanover County Commissioner Rob Zapple explained that, while he does send and receive very basic county-related text messages, like information on meeting times and places, the messages do not in his opinion rise to the level of conducting county business, and he deletes them after reading them.
Robin Keller, the clerk for the Guilford County commissioners, said her board follows state law with regard to disclosure. But that law, she said, allows public officials to delete text messages once they have no further administrative value. Six of the Board of Commissioners’ 11 members said they had no material still on their mobile devices to provide in response to the coalition's request.
That interpretation is consistent with state public records laws. And public records experts say that perfunctory messages certainly can be deleted without a problem. More complicated questions might arise if those texts involve matters of controversy or contain a key directive from a mayor or city manager to subordinates.
"Advisable or Not"
Stein said his office was getting ready to redraft a public records manual that gives guidance to local governments on how to respond to records requests.
"We want to update that guide in light of new technologies so that a county commission can figure out how they can make this work so that everyone is following the law," he said.
Although text messages tend to involve "in the moment" transactions, exchanges involving Charlotte City Council members included communication about high-profile issues, including a proposal seeking public money to attract a Major League Soccer team and naming a replacement for an open seat on the council.
For example, one staff member texted Councilman James Mitchell that talking points arguing for funding the stadium were nearly complete on Jan. 20. The employee said he was highlighting elements of deals from other local stadiums and arenas. Mitchell responded, "Great. Plus examples of using our tourism dollars. As well as what is the balance of the fund and how much will be left after we support the major league soccer effort."
Other correspondence showed how much some council members rely on texts, with a steady stream of interactions between public officials and constituents about a range of topics. Those included mayoral appointments to council committees and inquiries from constituents about how to obtain licenses or contracts.
In Greensboro, City Council member Marikay Abuzuaiter texted to ask for advice on dealing with draft legislation.
"Advisable or not? Can I send you a photo of my rough draft re all the emails? It would be public record soon enough," she asked.
Much of the material garnered from Greensboro is what one might expect from local government officials: exchanges over neighborhood concerns and questions about meeting times. At least two council members speculated about the potential to buy a property in the city center currently owned by the daily newspaper. In most cases, local elected leaders attempt to keep speculation about buying property under wraps for fear of driving up real estate prices.
For his part, Wake County's Hutchinson said he believes local officials should not worry that their text messages could become public.
"I believe in transparency in government," he said. "This is a public record. I don’t have any problem with it. This is nothing to fear. It’s just one more thing we need to provide to show we are doing the public good with good intentions. And we should welcome the opportunity to explain more about what we’re doing and what we're talking about."