MOORESVILLE, NC (Anna Douglas and Caroline Metzler/The Charlotte Observer) – "Loud mouths that don't even live in Mooresville pitching a fit."
That's how one elected official described, in a text message to the mayor, some homeowners who were lobbying the town of Mooresville earlier this summer to keep development off 137 acres near Lake Davidson.
Mooresville Commissioner David Coble thought it was a private text. But it ended up projected like a slideshow on a wall during a public town commission meeting.
North Carolina law says texts sent or received by government officials are part of the public domain – but a Charlotte Observer survey found many local governments across the state aren't following the law. Few places even have policies that would make sure employees and elected officials are saving texts.
In Coble's case, his texts were released after neighbors sent public record requests to get information about the controversial development plan. Faced with angry homeowners, Coble apologized.
By that point, though, the texts had spread "like wildfire," says Arielle Emmett, one of the neighbors who was concerned about the proposed development's impact on traffic and the environment. She felt the text showed residents who live outside Mooresville were being left out of decision-making.
Getting these kinds of text message records from government officials elsewhere in the state, however, could prove difficult for the public.
State officials have been warning public officials for nearly five years about the need to archive text messages as public records. North Carolina law requires government correspondence – including emails, memos and texts – be saved and subject to public disclosure if the content pertains to public business. It applies to both government-issued phones and personal cell phones and devices.
"It's not like this is a new issue – people have been using text messages for more than a decade," says Jonathan Jones, former assistant district attorney for Durham County and current director of the N.C. Open Government Coalition, advocates for government transparency.
The Charlotte Observer asked more than 20 municipal officials across North Carolina whether they regularly collect and archive text messages. Eight local governments gave no answer, including Wake and Guilford counties and Winston-Salem, Raleigh, and Durham.
Of the 14 cities and counties that responded, just two – the cities of Charlotte and Kings Mountain – said they either require employees to preserve text messages or they use software to routinely download texts.
Six local governments said they track down text messages if a public records request comes in, but they aren't archiving texts regularly. Those were Mooresville, the cities of Lincolnton and Greensboro, and Clay, Cumberland and Forsyth counties.
Six other municipalities – Mecklenburg County, the city of Belmont, the town of Elon, and the counties of Gates, Washington and Camden – have no policy to keep texts. Each of those said they have no way of tracking down the records without a court subpoena.
"For agencies that aren't routinely collecting text messages ... they're in violation of the law because they're not properly retaining public records," Jones said.
Mecklenburg County says its working on a solution and will buy technology to start preserving text messages.
The Charlotte Observer has been waiting more than one month for the county to look for and produce texts from health department employees. The Observer asked for text message records after Health Department Director Marcus Plescia resigned, following errors at county-ran health clinics involving cervical cancer screenings for low-income women.
No 'records cop'
Courtrooms are the sole enforcement venue for public records law in North Carolina.
While experts with the N.C. Department of Cultural Resources can help local agencies comply with the law, they have no authority to penalize government officials.
"There's no public records cop," said Michelle Walker, spokeswoman for the department.
Local and state governments may be sued over failing to keep records and can face legal challenges over public records request. Judges can force government officials to hand over public records.
If a government official is found guilty of purposefully destroying a public record, he or she may face a fine up to $500 and could be convicted on a misdemeanor charge.
The North Carolina League of Municipalities says it provides guidance and information about the public records law but ultimately it doesn't know how many municipalities are regularly archiving texts.
In other states with similar public record laws, governments have been challenged in court to turn over text messages. In California and Washington, state Supreme Court justices have ruled texts must be saved and subject to public disclosure.
Texts of 'historic' value
The length of time public officials and government agencies must archive texts depends on the content of the message, according to the state Department of Cultural Resources' Division of Archives and Records. Some texts may be deleted when there's no longer "administrative value," according to state rules. A text asking about an employee meeting location, for example, is of short-term administrative value.
In other cases, texts might need to be collected and kept for years.
A citizen's text about a pothole, for example, could be considered equivalent to a citizen complaint, says Kara Millonzi, an associate professor of public law and government at the University of North Carolina. Under state law, a record of a citizen complaint must be archived for at least a year past the date the issue is resolved.
State rules say other employee texts have important archive value and should be kept for at least three years. Texts and correspondence from department heads and managers must be kept indefinitely.
There are a few reasons, under state law, that governments may withhold records or redact information. Exemptions in state public records law include certain information related to personnel matters, internal security systems and corporate trade secrets shared with the government.
Texts should be treated like emails and the same rules about public disclosure apply, said Sarah Koontz, North Carolina's lead state archivist. If a government agency has no policy telling employees to archive texts, it should consider prohibiting workers from doing business via text, she said.
Koontz also suggests email systems may help governments inexpensively comply with public records law and preserve texts. This is similar to a policy the city of Charlotte adopted in 2016, which requires employees to forward texts to their city emails.
In Kings Mountain, town officials use archiving software to save texts. The service, provided by an Oregon-based company called Smarsh, automatically downloads texts through cell phone service providers, instead of relying on employees to archive their own messages.
Kings Mountain has never had a public records request for texts, said Matthew Dull, the town's information technology director. It pays Smarsh about $4,500 each year to get archive texts from about 65 cell phones.
A cautionary tale
Elected officials across the state need more training on their duty to preserve texts that relate to public business, says Coble, the Mooresville commissioner.
"I might be a cautionary tale," he told the Observer. "What I regret most is that it became an all-encompassing statement (about all residents)."
His texts about the issue, sent to Mooresville Mayor Atkins, were released as screenshots, or pictures. Coble says the town's attorney asked elected officials for relevant texts in response to a public records request from a neighbor.
Coble texted the "loud mouths" line in May. He says he was frustrated by angry homeowners who flung false accusations at him and other commissioners.
The developer's rezoning request had become heated, with some residents complaining the town was fast-tracking the application and others accusing elected officials of colluding with the developer.
The texts between Coble and Atkins went beyond talk of residents mounting opposition. They discussed media interest in the rezoning issue and talked about relations with other local government officials.
In one exchange, Coble told Atkins about a homeowner who promised legal action. Atkins responded with an emoji of a crying cat.
Later, Atkins texts he's made up his mind. "I don't see us delaying and I'm in support of moving this forward," he wrote.
About two months later, the town commission voted to reject the developer's request.
Coble said commissioners typically don't rely on texting to discuss public business. His phone is set to automatically delete old messages after about 30 days to preserve storage space, he said.
New policy in the town of Mooresville could soon address these issues.