A PAIR OF NORTH CAROLINA sheriff’s offices, in Ashe and Union counties, have a couple things in common. Each is on the receiving end of open records requests from an investigative TV reporter named Nick Ochsner, who asked for copies of text messages sent by law enforcement officials. And each office is pushing back against those requests to different degrees.
The FOIA disputes—between these rural sheriff’s offices and an urban reporter in this southern state—have made nightly newscasts and boiled over in behind-the-scenes legal correspondence. The dispute in Union County carries some of the anti-media posturing we’ve seen trickle down to the local level from Washington, including a mention of “fake news.”
This week, the situation in Union County escalated: WBTV-Charlotte sued the county sheriff and his office to try and pry loose records Ochsner seeks. Jonathan Jones, director of the North Carolina Open Government Coalition, tells CJR he believes the TV station’s open records lawsuit for text messages is the first of its kind in the state. FOI litigation over text messages is far from common, though concerns over access to text messages are taking hold at the state level to various degrees.
The efforts by Ochsner and WBTV highlight some all-too-common hurdles reporters can face when trying to obtain certain public records.
WBTV’s decision to file a lawsuit also conjures concerns about whether resource-strapped local newsrooms can handle the expenses associated with a protracted records battle. Yet in North Carolina, as in many states, the only way for journalists to resolve a public records dispute is to go to court. A spokesman for the Union County Sheriff’s office declined to comment, saying he had yet to see the complaint.
The letter ends with this: ‘Nick would not know the truth if it bit him in the face’—a quote that now graces the reporter’s Twitter bio.
IN UNION COUNTY, WBTV has for months battled the sheriff’s department for access to text messages between the sheriff and deputies. According to the WBTV lawsuit, the station is looking into the sheriff department’s “practices involving investigations of reported child sexual assaults,” and “certain decisions” made by the office regarding charges made “against a specific individual.” The station has previously reported on the department’s decision to charge Kristy Brooks, “a mother who had gone into hiding with her daughter against a judge’s civil order,” with felony child abduction days after an interview with her aired on WBTV.
Ochsner says when he asked six months ago for copies of text messages sent and received around the time the charges were filed, the sheriff’s office declined to provide them.
The sheriff’s then-attorney told the station that deputies don’t have texts responsive to the request and the department’s phone carrier doesn’t retain messages for more than five days. However, the station reported, “Best Practices for Electronic Communications in North Carolina,” a manual produced by the state archives, says public “agencies and employees should not rely on service providers to provide records created by text/IM.”
WBTV is lucky, Ochsner says, because the Raycom-owned company has capable outside counsel to help with First Amendment matters. He says a lawyer for the station tried to set up a meeting with Union County officials, its phone carrier, and WBTV to work out the records request.
Instead of a meeting, WBTV’s attorney got a nastygram from the Union County sheriff’s outgoing lawyer, William McGuirt. Ochsner and WBTV published the letter. Here’s an excerpt:
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.
The letter ends with this: “Nick would not know the truth if it bit him in the face”— a quote that now graces the reporter’s Twitter bio.
In Ashe County, 150 miles away, Sheriff Terry Buchanan launched an investigation into county employees who attempted to fill a different request for text messages filed by Ochsner. In a public meeting, the sheriff characterized the WBTV inquiry as a politically motivated fishing expedition. He expressed frustration that “an outside reporter from Charlotte” is “investigating the sheriff’s office.” Jones, of the North Carolina Open Government Coalition, called Buchanan’s response “insane.”
WBTV, which asked for copies of texts in April after a caller to the station’s tip line suggested a potential story about the newly appointed sheriff, still hasn’t received everything it requested; the station is contemplating its next move as county officials lawyer up in response to the request.
There’s a lot of government employees who simply just don’t realize that when they’re texting about government business they’re creating a public record.
TEXT MESSAGES OBTAINED by North Carolina reporters have provided stories with important context. In 2015, The Charlotte Observer and Raleigh News & Observer relied on text messages for investigations that revealed then-Gov. Pat McCrory personally intervened to help a friend and campaign donor secure a multimillion-dollar prison contract. Last year, Ochsner relied on text messages obtained from House Speaker Tim Moore for a story about how the speaker landed a side job as a county attorney.
Perhaps just as often, though, reporters in North Carolina file stories about how hard obtaining copies of public text messages can be. The Charlotte Observer recently ran a story which detailed roadblocks encountered in the paper’s pursuit of records from officials in Mecklenburg County.
From the July 14 lede in The Observer:
North Carolina law is clear: Text messages exchanged by government workers are public records. But Mecklenburg County doesn’t retain texts from county cellphones and officials’ personal devices—a practice that likely destroys public records in violation of state law.
The newspaper asked for texts sent or received by a county health director who resigned after learning about “errors at county health clinics involving cervical cancer screenings for low-income women.” Mecklenburg County officials told the paper they could not access them because the county’s phone carrier, Verizon, doesn’t keep them longer than a week. The North Carolina Open Government Coalition’s Jones told the paper he “believes the county violated the state’s public records law.”
Caroline Metzler, one of the reporters for The Observer piece, pointed out in an email to CJR that other nearby local governments, like the Charlotte City Council, have found ways to preserve such text messages. As more and more public officials carry out business on their phones, some unanimity on how records of such business are retained and disclosed would be meaningful—in North Carolina and elsewhere.
To that end, the North Carolina Open Government Coalition partnered in January with newspapers and TV stations to test how public entities around the state respond to requests for texts. The group and its news partners sent requests to nine local governments and 19 state officials. The result was scattershot, though no one who was queried denied the records should be public.
“Text messages in general are difficult to get from a lot of agencies mainly because there’s not a lot of education about text messages being public records,” says Jones. “There’s a lot of government employees who simply just don’t realize that when they’re texting about government business they’re creating a public record.”
The WBTV lawsuit, in which the news station alleges it is “informed and believes” that texts were improperly deleted, asks the court to compel the sheriff’s office to cough up the texts Ochsner asked for, and also to declare that the Union County Sheriff’s Office violated the state’s open records law.
“It’s a real problem that more often than not in North Carolina when someone asks to see the government business done via text message, the answer is we don’t have them or you can’t see them,” says Ochsner.
As for the personal attacks on his work from the lawyer, Ochsner says as a rule he doesn’t respond to ad hominem attacks from public officials. “That’s not the first time someone’s attacked my credibility in response to my questions for a story,” he says. “And, if I’m doing my job well, it won’t be the last.” There is more room on his Twitter bio, after all.