In the growing dispute over how much state and local government agencies should charge for providing public records, Gov. Pat McCrory‘s top attorney cited Asheville and Charlotte’s policies to justify a rise in fees. But according to staffers in both cities who handle records requests, the two municipalities rarely, if ever, levy extra charges.
At issue is how to interpret part of North Carolina’s public records law, which generally asserts that public records should be available for free or for the costs of duplicating them.
An exception in the law has sparked a debate between N.C. Attorney General Roy Cooper, a Democrat who is expected to run for governor in 2016, and McCrory, a Republican.
The law reads, in part: “If the request (for public records) is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved … then the agency may charge, in addition to the actual cost of duplication, a special service charge, which shall be reasonable and shall be based on the actual cost incurred.”
In a Jan. 28 letter to McCrory, Cooper charged that the governor is overseeing a spike in special service charges that “violate the spirit and perhaps the legislative intent” of the public records law. “The people are poorly served by barriers to obtain information they already own,” he added.
On Feb. 7, McCrory’s general counsel, Bob Stephens, fired back. “This administration is committed to transparency, open government, and broad access to public records,” he wrote in a letter to Cooper. “To suggest otherwise ignores our current practices and is simply wrong.”
Both letters can be read below.
Fees rising from some government agencies, but not from Asheville or Charlotte
In their letters, both Cooper and Stephens noted that state law permits fees for “extensive” public records searches. But Cooper asserted that such fees are getting out of hand and stem from direction to state agencies by McCrory’s office. Stephens countered that the special charges are warranted when requests impose a large time commitment from public workers.
The rise in fees for public records has become costly for some N.C. media outlets. Carolina Public Press, for example, recently paid the state’s Department of Health and Human Services $45.86 per hour for four hours of public records searches by the department’s IT staff. In his letter to the governor, Cooper cited an unnamed state agency that is charging $51.47 for the same service.
“We have seen a huge uptick in these giant fees,” North Carolina Press Association attorney Amanda Martin said Tuesday.
“Excess fees should only be charged when (requests) demand a truly extraordinary amount of time by the public employees,” she told Carolina Public Press. “Answering public records requests is not a task added to a public employee’s work obligations. Answering public records requests is part of those obligations.”
In his letter, Stephens argued that many municipalities, counties and state universities charge more for “extensive requests.”
“In response (to large requests), cities like Charlotte and Asheville have instituted special service charge policies,” he wrote.
Staffers for both cities, however, say that they rarely, if ever, tack on search charges for public records.
“We don’t charge for requests, other than occasional costs for duplication,” said Dawa Hitch, the city of Asheville’s public information officer. In the past four years, she said, she could recall “maybe a few” times when the city charged extra fees for records, and she thinks that such cases are now on the wane.
“Especially in this digital age, we’ve been moving more and more toward open data,” Hitch said, most of the records requested from the city can be readily provided in digital form, at minimal cost. (Editor’s note: In response to our multiple requests in recent years, Hitch’s office has provided thousands of pages of public records to Carolina Public Press, in digital form, at no cost.)
Carolyn Johnson, a senior deputy city attorney for Charlotte who often handles public records requests, said that the situation is similar in her city. “I honestly don’t think we’ve charged extra for even requests that result in a large volume” of records, she said.
Johnson added that other city staff had also responded to records requests, without her involvement, so she couldn’t speak to the details of their work. But, she said, she’d be surprised if extra fees cropped up in fulfilling a public records request.
“We charge our actual costs to copy paper documents — three cents a page, because that’s what it costs us,” Johnson said. And most often, she said, public records are delivered to requesters electronically, for free.
“We don’t charge for the staff’s time (spent gathering records), and not on the IT side either,” she said.
In his letter to Cooper, Stephens argued that, to some degree, the rise in fees for public records reflects a rise in requests. “Special service charges help these towns, cities, and counties cope with massive requests,” he wrote.
Cooper, in his letter to the governor, said that he was urging state legislators to “consider legislative changes” to the public records law that would “more clearly define ‘extensive’ requests and the ‘special service charge.’”
For the record — Cooper and Stephens’s exchange on charges for public records:
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The dark motives behind these policy changes do not suggest efficiency or cost savings to government agencies so much as their sly intent is to frustrate the public’s salutary view into official acts. The governor’s actions are designed to interfere with the public’s right to know, to diminish transparency and openness in violation of clearly written statutes, and to violate the intent of the legislature to open the public’s three branches of government purporting to be separate and independent of one another to the disinfecting rays of sunshine. It doesn’t take a social scientist to tell you that public officials behave less ethically when they know they are not being watched.
As a native who has lived here for almost seven decades, I have witnessed the phenomenon time and again. In 2011 — 2012, Asheville Police and the City of Asheville pulled off a scurrilous ruse to obstruct my records request for a frivolous 911 call to Asheville police which yielded a fleet of unnecessary police cars screeching onto my street, wasting resources and the taxpayers’ money. The city manager’s office then insisted on providing a transcript which had been tampered with and crucial parts redacted to conceal data critical in my defense against two frivolous criminal lawsuits, instead of the 911 recording which could have been duplicated onto disc in much less time and expense.
With this continuing destruction of the public’s rights to openness in government, by degrees we North Carolinians are slouching into a police state devoid of constitutional safeguards against the insolence of office, and, ultimately, tyranny. Our courts have become accessories, aiding and abetting the absurd interpretation of our laws which protect us against dishonest state actors.
Making ridiculous excuses for themselves worthy of the official lies of banana republics, the Asheville city manager’s office and their pettifogger lawyers then declared they were within their legal rights to deny a recording and secrete the name of the 911 caller when it was obvious to everyone but the comatose who she was. But it was the identity of the person on the other end of the line, and the shenanigans that followed at APD that the city were obsessed to conceal. And they did, successfully and with manifest corruption, all the way to the North Carolina Court of Appeals.
Twice I appeared before City Council protesting this official trickery, and still they stonewalled me. City officials led by Assistant City Manager Jeff Richardson even tried their damnedest to fabricate a criminal case against me, by falsely claiming I had communicated a threat of violence to the city’s public information officer, Dawa Hitch.
Then, relying on my background as a trial lawyer and extensive research into Chapter 132 of the General Statutes and the caselaw, and using the successful lawsuit filed by AC-T and their lawyers, Glen Kelly and Gary Rowe against DSS, I sued the city; and the smirking bureacrats trotted in a special show judge, Sharon Tracey Barrett, who peremptorily threw out my lawsuit. Then the court of appeals threw out my appeal and petition for mandamus in the blinking of an eye, despite the statutes’ sparkling clarity on the subject, which guaranteed special consideration and priority on the appellate calendar.
The upshot of my eye-opening experiences with these unconscionable mongers in chicanery hiding behind cloaks of secrecy is that no matter what the statutes say, and Chapter 132 and its definitions are very clear, executive and judicial branches will crawl up trees backwards to distort, pervert, and elude the sunshine laws.
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North Carolina General Statute Section 132-1 (b): The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people. Therefore, it is the policy of this State that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law. As used herein, “minimal cost” shall mean the actual cost of reproducing the public record or public information. (1935, c. 265, s. 1; 1975, c. 787, s. 1; 1995, c. 388, s. 1.)
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“Constitutional guarantees of human rights ring hollow if there is no forum available in fact for their vindication. Statutory rights become empty promises if adjudication is too long delayed to make them meaningful or the value of a claim is consumed by the expense of asserting it.” American Bar Association Journal, 1976; Report of the Pound Conference Followup Task Force, 74 F. R. D. 159, 167 (1976)