As Gov. Roy Cooper’s newly installed appointees raced to get a grip on state government in 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 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.
Ten years ago, such conversations would have taken place by phone or email. But 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 that help provide a picture of what it takes to run a state of 10 million people. But after inquiries from a coalition of news organizations, it’s clear that getting access those public records depends largely on the goodwill of those department heads.
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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 Gov. 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,” Attorney General Josh Stein said in an interview. 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.
North Carolina’s public records law, 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 widespread, it is 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 requests 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 that 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 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, he found none. “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 among high-ranking administration officials in 2014 allowed the The News & Observer and Charlotte Observer to report that former Gov. 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.
Sarah Koonts, North Carolina’s state archivist, says her agency seeks to balance the public’s right to know and the organizational need to let go of material that may have little historical value.
Text messages tend to be transitory in nature. Koonts and Lineberry said that the bulk of text messaging they are aware of is used to confirm meeting times, ask for email addresses or do quick administrative tasks. The bulk of Secretary of State Elaine Marshall’s text messages, for example, included a readout of her daily schedule from a secretary and regular exchanges with a lobbyist tracking the new hires in other state agencies.
Elsewhere, on Jan. 11, a subordinate at the Department of Public Safety texted the new secretary, Erik Hooks, to confirm that he had been issued a new official vehicle, a Dodge Charger.
“That is one sweet ride,” wrote Charles “Vic” Ward, a deputy commander of the State Highway Patrol.
While history could likely live without those exchanges, others reveal the challenges Cooper’s administration perceived coming into office.
In early January, interim Transportation Secretary Mike Holder was working through a snowstorm and a transition that meant several executive-level people were leaving. He appointed DOT chief information officer Eric Boyette to take over temporarily as commissioner at DMV, a state agency that has long caused headaches for administrators.
On Jan. 17, Boyette checked in with Holder:
“DMV is a wreck,” he wrote in a text.
Holder: “Thanks! As we figured!”
In a joint interview, Holder and Boyette said the exchange reflected frustration of trying to sort through issues that included learning about an internal audit and an incident where a DMV employee was bitten by an angry customer.
“I had been up all weekend working storm duty,” Holder said. “Then, come Tuesday morning, it was one DMV thing after another.”
Boyette said that the agency is constantly working to improve. McCrory had touted consumer-friendly improvements at the agency, and Boyette agreed that customer service had gotten better during the past few years.
“I continue to ask the units to review their processes,” Boyette said. “What can we do to improve? We’re making progress.”
There’s no question that text exchange is public record, but there was no guarantee that Holder would have kept it long enough for reporters to find.
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. Instead, they are governed by guidance by the State Archives and each agency’s individual records retention policy. A text message that has served its administrative purpose, such as arranging a quick meeting, could be deleted legally in the days or weeks following its transmission.
Koonts said it’s largely up to each individual government official to ensure he or she is keeping material that might have some longer-term value.
“If you’re just asking, ‘Are you in the office?’ that’s no big deal,” Koonts said. On the other end of the spectrum would be messages ordering a dramatic government action like shutting down a plant or ordering the firing of an agency head. The senders of those messages would likely have to go out of their way to log such communications, perhaps by emailing the texts to themselves.
But what about texts in the middle ground between those two extremes?
Newly-elected State Treasurer Dale Folwell, a Republican, found himself fielding offers and entreaties from fellow members of the GOP in early January. Among those were Thomas Stith, McCrory’s chief of staff, who sought a meeting with Folwell for himself and for an associate who runs a firm that manages money for big investors such as the state’s pension funds.
“They are and remain the 2nd largest money manager for the state at 3 billion,” Folwell texted in response.
“Yes he mentioned that,” Stith texted back. “I think on reflection he wanted to add some thoughts to support your goals ... no rush.”
Whether that message is worthy of archiving might depend on whether that money manager continues to work for the state or if that role is expanded.
“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.
Tomorrow: Tension in Wake
Mark Binker and Kelly Hinchcliffe reported for WRAL News, Emery P. Dalesio for The Associated Press, Steve Riley for The News & Observer and Frank Taylor for Carolina Public Press. Additional reporting by Kymberli Hagelberg of the News & Record of Greensboro, Ann McAdams of WECT, Doug Miller of The Charlotte Observer and Jay Hardy of Time Warner Cable News.
Riley: firstname.lastname@example.org, @SRileyNandO
About this project
This story was reported and written in cooperation with the North Carolina Open Government Coalition as part of Sunshine Week, an annual effort to bring attention to how journalists and citizens use open records and open meetings laws to hold government accountable.
The coalition, based at Elon University, brings together news organizations, government representatives, and others who are interested in educating the public about the benefits of open government and expanding the rights of all citizens to gain access to public documents.