UNC opposes former provost’s ‘unwarranted’ requests in open meetings lawsuit

The University of North Carolina at Chapel Hill spelled out its objections Monday to a former provost’s latest request in an open meetings lawsuit against the university. The case is scheduled for a hearing Wednesday afternoon in Hillsborough.

Former provost Chris Clemans filed an Oct. 8 motion for “expedited discovery, preservation order, forensic imaging, and in camera review” in the case.

The university and its Board of Trustees filed their response Monday.

“Plaintiff Chris Clemens asserts two claims related to the use of electronic messaging that he claims violates North Carolina’s Public Records Act and the Open Meetings Law,” the university’s lawyers wrote. “These purportedly violative communications occurred in an eleven-day window from March 20, 2025, to March 31, 2025. Rather than seeking these communications through a public records request, Clemens chose to initiate this lawsuit.”

“Once the lawsuit was filed, Clemens did not request the relevant communications through the discovery process,” the court filing continued. “Instead, he and his counsel have come directly to this Court for sweeping relief that is not afforded to him under the Rules of Civil Procedure and is substantively unwarranted.”

Clemens complaint is “baseless,” the university’s lawyers argued. He “fundamentally misunderstands the remedies available to him under North Carolina’s Public Records Act and Open Meetings Laws.”

The Public Records Act “does not give Clemens a cause of action for the requested declaratory judgments or grant this Court the authority to mandate a public body to adopt certain records policies,” according to the court filing.

“Clemens has neither alleged that he made a public records request — he cannot, because he did not — much less that a request was improperly denied by the University,” UNC-CH’s lawyers wrote. “Instead, he seeks to enforce section 132-3’s prohibition on the destruction of public records. Section 132-3, however, is a criminal statute and cannot be enforced by a civil litigant like Clemens.”

The university also responded to Clemens’ arguments that secret meetings helped lead to him losing his job.

“Clemens alleges that the Trustees participated in text messages for the purpose of building support to remove him as the University’s Provost. The Board does not have that power,” according to the court filing. “What’s more, Clemens admits that he was never removed but chose to voluntarily resign. In sum, Clemens’s Verified Complaint fails to provide any foundation for the extraordinary relief requested in his Motion.”

“Clemens’s statements of ‘belief’ are nothing more than mere skepticism and generalized suspicion of Defendants — which is not sufficient to warrant any sanction, much less forensic imaging,” the university’s lawyers wrote.

The former provost challenges the way university officials have used the Signal messaging application.

“This motion seeks court intervention to stop Defendants’ destruction of evidence through Signal’s auto-delete feature and routine deletion of text messages that document illegal meetings and violations of North Carolina’s transparency laws,” wrote David McKenzie, Clemens’ lawyer. “Without action, evidence of Defendants’ deliberate circumvention of the Open Meetings and Public Records Laws will be permanently lost.”

Clemens also seeks “imaging of Defendants’ phones to preserve evidence in this matter.”

“Plaintiff acknowledges that the forensic imaging of Defendants’ personal devices is an extraordinary remedy, one that courts do not order lightly due to its potential intrusion on privacy,” McKenzie wrote. “However, Defendants’ conduct in this matter is even more extraordinary: the deliberate and systemic use of ephemeral messaging platforms like Signal with auto-delete features enabled to conduct public business, combined with routine manual deletions of texts and a failure to confirm preservation despite explicit notice, represents a calculated effort to evade North Carolina’s transparency laws.”

“Such evasion is particularly ironic and doubly extraordinary: the Board, entrusted with governing the nation’s oldest public university, has apparently sought to privatize the public’s business,” McKenzie argued. “Such evasion not only frustrates the Public Records Law’s mandate for retention and access but also necessitates this targeted intervention to prevent irreparable spoliation and uphold the public’s right to accountability.”

“Ironically, the guardians of a public institution sworn to openness have cloaked the people’s business in digital secrecy,” McKenzie wrote. “They conduct the people’s business through disappearing messages, coordinate Board action through unrecorded electronic meetings, and then delete the evidence. This Court must act to preserve what evidence remains and recover what has been destroyed.”

Clemens served as executive vice chancellor and provost from February 2022 until May 2025, when “UNC leadership” asked for his resignation. University officials cited “inappropriate disclosure” of closed-session discussions, according to the complaint filed Sept. 22 in Orange County Superior Court.

“Every trustee of the University of North Carolina at Chapel Hill takes an oath to ‘solemnly and sincerely’ be faithful and bear true allegiance to the State of North Carolina,” McKenzie wrote in the original complaint. “That oath is more than ceremony. It binds the Board of Trustees to the State’s transparency laws the Open Meetings Law and the Public Records Law and to the basic premise that the public’s business must be done in public. Yet this UNC Board treats that oath as a suggestion.”

“This Complaint will show a pattern and practice by the UNC Board of Trustees by systematically hiding matters of grave public concern behind closed doors: invoking closed session for reasons not authorized by statute; conducting deliberations electronically without proper notice or public access; and deliberately communicating about public business on auto-deleting platforms such as Signal to evade records retention and public inspection,” McKenzie continued. “The result is the same each time less transparency, less accountability, erratic governance, and a steady erosion of public trust in the nation’s first public university.”

Clemens asks the court “to declare that the Board’s use of the personnel exemption to shield discussion of tenure policy was unlawful; to enjoin the Board from using closed session to conduct general policy or budget debates; to require precise, statute-tracking closure motions and compliant minutes and general accounts; to prohibit the use of auto-deleting applications for public business; to order training; and to award attorneys’ fees as permitted by law.”

The lawsuit focuses first on a March UNC Board of Trustees meeting. Clemens “prepared to present a slate of faculty tenure recommendations.” Trustees cited a personnel exemption in state law to move the meeting into closed session.

“Once in closed session, the discussion immediately departed from individual tenure candidates,” McKenzie wrote. “Instead, the Board debated the financial impact and existential value of tenure as an institution, with some members voicing opposition to its very premise. What began as routine personnel review morphed into a closed-door policy referendum on whether tenure should exist at UNC-Chapel Hill and whether the Board should even vote on the pending recommendations.”

Trustees later “recast the closed-session debate as a fiscal matter,” citing a potential $80 million cost for the proposed tenure commitments. “The shift to long-horizon cost framing did not convert the discussion into a permissible personnel matter; it remained a policy debate that belonged in open session,” McKenzie wrote.

Clemens noted “ironically” that the trustees had committed UNC to a “total exposure well into the tens of millions over five years” when it agreed during a December 2024 closed session to hire Bill Belichick as the new head football coach.

The lawsuit alleged “systematic misuse of closed sessions to hide policy debates from public view.” In addition to the Belichick hiring and the March tenure discussion, Clemens’ complaint cites two other athletics-related closed sessions in November 2023 and May 2024. The suit claims all four closed meetings were illegal.

“Each episode follows the same pattern: the Board invokes a statutory exemption, enters closed session, then discusses broad policy or budget matters that must be debated publicly,” McKenzie wrote. “The Board compounds these violations by maintaining inadequate general accounts that prevent public understanding of what transpired.”

The March closed session on tenure policy was “unlawful,” according to the lawsuit. “Because the session was not lawfully closed, no lawful confidentiality attached to that policy discussion, and nothing Plaintiff communicated to deans about the Board’s policy posture could constitute disclosure of confidential closed-session information.”

The provost met later the same day with deans and vice provosts. He told them that the board had made no tenure decisions, discussed no individual candidates, and instead “engaged in a sweeping policy discussion” about tenure.

The lawsuit next accuses Dean Jed Atkins of the School for Civic Life and Leadership of contacting Trustees Chair John Preyer through the Signal messaging app. “Atkins used Signal’s ephemeral message feature, which automatically deletes messages after viewing,” according to the complaint.

Clemens asserts that Preyer used text messages and Signal to contact a majority of board members “for purposes of deliberating about and building consensus for a vote of no confidence in the Provost, without providing any public notice, public access, or minutes of these electronic deliberations as required by the Open Meetings Law,” according to the complaint.

The complaint draws attention to university officials’ use of Signal and similar apps. It “frustrates the creation and management of public records,” according to the complaint.

“[T}rustees and senior staff have repeatedly relied on off-channel, auto-deleting communications to discuss controversial or consequential Board matters, while simultaneously routing policy debates into closed session,” McKenzie wrote. “This combined practice policy in secret, decisions orchestrated through unnoticed electronic exchanges, and failure to capture/retain related records-constitutes ongoing, systemic, and purposeful evasion of North Carolina law.”

Clemens later filed a subpoena targeting a professor in the School for Civic Life and Leadership. That professor, Dustin Sebell, was quoted in media reports accusing Clemens of being “UNC’s most devoted user of the Signal messaging app.”