TBI: Nude cellphone photos, deleted chats may show evidence of crime in Mayor Megan Barry affair

The Tennessee Bureau of Investigation says it has obtained nude photos of a woman taken on the phone of former Sgt. Rob Forrest, evidence that investigators believe shows Nashville Mayor Megan Barry engaged in an affair with her former bodyguard while he was on duty.

The photos are referenced in an affidavit in support of a search warrant that Nashville Judge Steve Dozier signed Tuesday seeking access to the contents of Barry's cellphone. It was filed in the Criminal Court Clerk's office Thursday.

The TBI obtained a search warrant and took possession of Barry's phone Friday, the records show. The mayor and her attorney have refused to share the pass code to unlock it, according to the affidavit.

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The affidavit cites explicit images of a woman's body found on Forrest's phone that appear to be taken while he was on out-of-town trips with the mayor.

Also on Forrest's phone, subpoenaed by the TBI earlier this month, investigators have uncovered 260 deleted chats between that device and Barry's phone number as well as 35 deleted call logs, the affidavit states.

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Based on the photos and deleted chats they discovered on Forrest's phone, the TBI says it has probable cause to seek evidence they believe could show a crime was committed.

The affidavit cites state statutes for misconduct of public officials and employees and theft of property.

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"A search of Megan Barry's phone could reveal information that is crucial evidence for this case," the affidavit reads. "In particular, data and information that has been deleted from Sgt. Forrest's phone may still exist on Megan Barry's phone."

"The deleted chats and messages between Sgt. Forrest and Megan Barry, if recovered, could provide further evidence of their activities while Sgt. Forrest reported to be on duty."

Barry: Photos taken without mayor's knowledge

The allegations in the affidavit are the most serious yet since Barry admitted Jan. 31 to an affair with Forrest that began in the spring of 2016. Barry, a Democrat, has said she does not plan to resign, a position that she reiterated Thursday.

In a written statement issued late Thursday, Barry said "the allegations of photos taken of myself are very troubling if true." She said she's not seen the photos in question, adding that if they are of me, "they were taken without my knowledge or permission and a complete invasion of privacy."

“Nothing in the affidavits released today, which should have been sealed until the conclusion of this investigation, indicates that I have committed any actions that violate the law. If any violations of the law occurred, they were in violating my personal rights," Barry said.

“We will continue to cooperate with the ongoing TBI investigation, but the release of this affidavit to the media in an attempt to politically damage or embarrass me is an example of why I will continue to protect my personal rights in this process.”

The Tennessean obtained the affidavit from the Criminal Court Clerk's office, where search warrant records are kept.

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Davidson County District Attorney General Glenn Funk, who requested the TBI's investigation on Feb. 1, declined to comment on the search warrant.

“I told the TBI to follow their standard operating procedure and I’m not going to comment until after the investigation is complete," Funk said.

TBI cites explicit photos taken on two trips

Barry has said that there was no personal engagement in the affair while Forrest was on duty.

But the affidavit cites nude and partially nude photos of a woman on Forrest's phone taken during two trips, both to Washington, D.C.

Barry traveled to Washington on May 15-17, 2017, for an infrastructure conference, and Forrest was the only other city employee who went with her.

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According to timecard records referenced in the TBI affidavit, Forrest clocked in to work at 7:30 a.m. on May 15 and clocked out at 3:30 p.m. He then clocked in for overtime until 9:30 p.m.

On Forrest’s phone, there were nude images of a woman the TBI believes to be Barry that were taken during the time that Forrest reported receiving overtime, according to the affidavit.

“This image is of a nude female lying on a bed with a black purse beside her,” the TBI affidavit states.

Images taken during a radio interview in Washington show Barry with an identical purse prior to when the nude photo was taken, according to the affidavit.

David Raybin, Forrest's attorney, said he has not seen the affidavit or search warrant and could not comment. He also declined to comment in response to questions raised by Barry's attorney.

Deleted messages on officer's cellphone

Barry also took a trip with Forrest to Washington for a speech at the Woodrow Wilson Center and to attend another event on Oct. 18-19.

Forrest clocked in Oct. 18 at 7 a.m. and clocked out at 3:30 p.m., before reporting overtime from 3:30 p.m. until 9 p.m., the affidavit states. A photo taken at 3:39 p.m., when Forrest was on the clock and Barry’s calendar shows she planned to be in a meeting, shows an explicit image of a woman's body, according to the affidavit.

On the same days both sets of photos were taken, Forrest emailed the images to his work email address, the affidavit says.

There were also 260 deleted iMessages between the number listed as Barry's phone and Forrest's phone that investigators have been unable to recover, according to the affidavit.

The court order is a sign from the TBI that Barry and her legal counsel have not willingly shared all documents sought by investigators.

According to the TBI, investigators asked Barry's attorney Jerry Martin for Barry's phone on Feb. 15, but Martin refused, according to the affidavit. On Feb. 16, a TBI agent served a search warrant at the mayor's office at 3:45 p.m., but Barry refused to provide the pass code so they could unlock it.

On Tuesday, Martin again declined to provide the pass code to a TBI agent, according to the affidavit.

"Due to the fact that Megan Barry has thus far refused to provide the pass code to her phone, the only process for examining the phone ... is to have the phone unlocked by a third party," the affidavit states.

Barry has promised to 'fully cooperate' with TBI investigation

But Martin said Thursday the notion that Barry is not cooperating with the investigation is wrong. He said he was in discussions with the TBI for Barry to voluntarily turn over her phone when investigators filed the affidavit for the search warrant. Martin said he was especially troubled the affidavit was not filed under seal.

The mayor has promised to “fully cooperate” with the TBI’s ongoing investigation, vowing complete transparency, including making available “any records over to anybody that would like them.”

As recently as Feb. 13, Barry told reporters, “Everything that they have asked for, we have given them.”

Martin accused the TBI of breaking from its standard procedure by not filing the warrant under seal.

"It’s plain from the language of the affidavit that the identity of the person in the photographs is unclear," Martin said. "If, and that’s a big if, there are any photos of the mayor, they were taken without her knowledge.

"The unsealing of this affidavit is deeply troubling. Typically, search warrant affidavits remain under seal during the course of the investigation. Most investigators want to keep the details of their investigation under wraps while it’s ongoing. What’s happening here? This isn’t standard procedure. It’s the opposite."

TBI spokesman Josh DeVine said the agency is treating the case like any other. He added that TBI warrants are seldom sealed and said it is up to prosecutors and judges to decide whether they are sealed.

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City: Mayor's phone not a public record

Forrest, a security officer for Barry and Nashville’s two previous mayors, was a regular presence with Barry during out-of-town city trips, a departure from the practice of past mayors who were not accompanied by security.

Barry and Forrest attended 10 city-funded trips by themselves without other mayor’s office staff present, including to conferences overseas in Paris and Greece and the two to Washington cited in the affidavit. Barry and Forrest are both married.

The city denied a Tennessean request on Feb. 2 for all photographs on the mayor’s phone.

Metro Clerk Elizabeth Waites pointed to state statute, which defines public records as records that are “made or received pursuant to law or ordinance,” or connected to the transaction of city business, and “does not include the device or equipment.”

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Forrest earned $173,843.13 in overtime from July 2015 through Jan. 15 of this year, according to city data, more than the amount earned by the four other police officers in Barry’s detail combined.

Barry has called the affair a personal matter and said she committed no legal wrongdoing.

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Although it was not immediately clear if the city owned or paid for Barry’s phone, city policy on use of “technology assets” is clear: Electronic devices must be used in a “professional, ethical and legal manner.”

In order to access city information on a mobile device, the policy states the device would need to be connected to a city-approved server.

The policy says users of city phones have no expectation of privacy regarding “any information they create, store, send or receive” on their devices. Users who know of an investigation or legal action that may require a review of their devices must also not delete any “potentially relevant information” from the devices, according to the policy.

Any violation of the policy could result in punishment up to and including firing.

In addition to the TBI investigation, Barry is the subject of an investigation from a special committee of the Metro Council that is reviewing whether she misused public money during the affair.

Separately, Barry has been hit with an ethics complaint from social activists who have alleged that, because of her affair with Forrest, the mayor was conflicted when she made decisions related to police.

Reach Joey Garrison at 615-259-8236, jgarrison@tennessean.com and on Twitter @joeygarrison. Reach Nate Rau at 615-258-8094, nrau@tennessean.com and on Twitter @tnnaterau.