UCSO lawyer claims deputies' text messages deleted, criticizes WBTV investigation

Updated: Jun. 30, 2017 at 2:53 PM EDT
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MONROE, NC (WBTV) - On his last day as the lawyer for the Union County Sheriff's Office, attorney William McGuirt took aim at an ongoing WBTV investigation and said the sheriff's office would refuse efforts by the TV station to obtain text messages sent and received by deputies.

McGuirt was responding to an email from Jon Buchan, a lawyer for WBTV who, for nearly two months, has attempted to set a meeting with McGuirt and a representative from the company that provides the sheriff's office's cell phones in hopes of resolving an outstanding public records request.

WBTV has requested, among other records, text messages sent and received by Union County Sheriff Eddie Cathey, Chief Deputy Todd Elmore, Detective Tabitha Lockey and Deputy D. Allen between January 1, 2017 and January 31, 2017.

The request was made by WBTV on January 31, 2017 as part of its ongoing investigation into the sheriff's office's decision to seek a magistrate's warrant charging Kristy Brooks - a mother who had gone into hiding with her daughter against a judge's civil order - with felony child abduction.

Records obtained by WBTV show the sheriff's office charged Brooks with felony child abduction months after a criminal law expert at the UNC School of Government advised Brooks' case did not warrant such a charge. District Attorney Trey Robison never brought the charge to a grand jury.

Previous Story: Union Co. sheriff brought child abduction charge despite expert advice

The Union County Sheriff's Office has refused to produce any text messages in response to WBTV's public records request. Text messages are a public record under the North Carolina Public Records Act.

McGuirt has offered a number of explanations for why there either are no responsive records or, alternatively, why any records that could be responsive to the request no longer exist.

First, McGuirt told WBTV that Verizon - the company contracted to provide cell phone service to the sheriff's office - does not store text messages for more than five days.

In his response regarding text messages, McGuirt has said deputies have told him they do not have any text messages responsive to WBTV's request but he has never detailed whether or how he conducted a search of deputies' phones to see if any responsive records actually exist.

But McGuirt's assertion that the sheriff's office is relying upon its wireless provider to store text messages is a violation of the retention schedule for electronic records set by the North Carolina State Archives, the agency charged by the North Carolina Public Records Act for establishing guidelines for retention of public records.

The state archives' manual Best Practices for Electronic Communications in NC, last updated in December 2016, makes it clear that text messages in which public business is transacted are subject to the Public Records Act.

"NOTE: Agencies and employees should not rely on service providers to provide records created by text/IM," the manual reads.

"Agencies who provide employees with work-issued devices should be mindful of these issues and seek to address them in their contracts and or Service Level Agreements with service providers to ensure they can obtain copies of their public records," the manual continues.

After an attorney for WBTV presented McGuirt with the applicable retention schedule and pointed out that the sheriff's office appeared to be in violation of the law, McGuirt next sent a letter saying the sheriff's office had "no text messages or instant messages applicable to (WBTV's) request."

McGuirt did not explain how he was able to review possible responsive text messages after they were allegedly deleted by Verizon through its five-day retention policy.

Finally, in response to continued questions from a second, local, attorney representing WBTV, McGuirt said the sheriff's office discourages its employees from using text messages for business purposes.

"Also, I wanted to let you know that our agency does discourage officers from using text messages in the line of duty," McGuirt wrote in an email to an attorney representing WBTV on May 29, 2017. "We have consistently over the years told officers that anything they create in the line of duty could be a public record and that it may be subject to disclosure."

But WBTV has obtained text message records from the Union County District Attorney's Office - which also contracts with Verizon for cell phone service but was able to retrieve its messages and produce messages responsive to a request from WBTV - that show Union County Sheriff's Office employees routinely send text messages in the course of their public business.

A review of text messages from the DA's office found ten different officers - including two lieutenants and two captains communicating with prosecutors via text.

An attorney for WBTV has used the existence of those text messages and the fact that the DA's office was able to retrieve its text messages from Verizon more than five days after they were sent as a basis to request that McGuirt facilitate a meeting between the sheriff's office, Verizon and WBTV to discuss ways to retrieve messages responsive to the station's request.

McGuirt had previously indicated he would work to arrange such a meeting but, in an email sent Friday, said he had been too occupied by preparing for his retirement to focus on fulfilling WBTV's records request.

"To be honest, I have had neither the inclination nor the opportunity to respond to your email," McGuirt wrote in an email to an attorney for WBTV responding to a follow-up inquiry regarding the status of the station's outstanding request. "I have been interviewing my replacement, packing my personal belongings and saying "good-by" (sic) to many friends."

McGuirt's email went on to say the following:

I discussed this matter with my client.  I have told you about my discussions with Verizon and the fact that we have no way to retrieve any text messages from January.  Quite frankly, I do not believe that I can say anything to satisfy your client.  I have been watching WBTV lately just to see what Nick Oschner (sic) has been doing.  It seems, to me and others, that he is doing nothing but making personal attacks of Republican Sheriffs and now, Republican legislators in North Carolina.  It angers me that a large news organization is attacking Republicans because conservative Republicans don't agree with the media's liberal views.
Suffice it to say that it is 4:45 a.m. on the last day of my employment with the Sheriff of Union County.  I am completely satisfied that my Sheriff, Eddie Cathey, is a good and honest man.  Nick Oschner (sic) is attempting to attack the reputation of a man who is beyond reproach and the majority of the citizens of our county see that.  I will no longer watch WBTV.  I don't agree with many things that our President says or does in Washington but I do agree with his assessment of the media and fake news.  Especially in light of Nick Oschner (sic) and his recent reporting of the Kristy Brooks case.  Nick would not know the truth if it bit him in the face.
So, no, I will not be scheduling a meeting or three-way telephone call to discuss our account with Verizon.  Since Sheriff Cathey has not found a replacement for me yet, I will refer you to Senior Staff Attorney Jeff Crook with Union County's legal staff for any further legal issues until my replacement is hired.
I wish that I could wish you good luck but that would not be true.  My work here is done.

A spokesman for Sheriff Eddie Cathey did not respond to an email from WBTV sent Friday morning providing the sheriff's office an opportunity to provide additional comments for this story.

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