A Waxhaw man has accused Montgomery County officials of charging exorbitant fees for public records in an effort to cover up what those records contain.
Engaged in a long-running dispute with county officials over efforts to obtain copies of other records, Wes McCaskill told Carolina Public Press that he believed Montgomery County elected officials and staff were internally discussing his actions. In March, he requested emails and messages dating back to 2013 that named him or his associate, Richard Inskeep.
McCaskill told CPP that he hoped his request would reveal the county’s motivation for not releasing the information he had initially requested.
Instead, the county demanded more than $3,000 for the records.
CPP talked with McCaskill and a legal expert about the situation, while also reviewing a record of McCaskill’s correspondence with various county officials. CPP also attempted to contact Montgomery County Manager Matthew Woodard, but he did not respond to phone calls and emails prior to publication.
Dam-powered dispute
McCaskill’s feud with Montgomery County began in 2013, when he first saw flood-evacuation route signs pop up in a neighborhood on Lake Tillery, where he and his family have owned property for decades.
Lake Tillery, which straddles the Montgomery and Stanly county lines, was formed in the 1920s, when Carolina Power & Light dammed the south-flowing Pee Dee River just south of the confluence of the Yadkin and Uwharrie rivers, which form the Pee Dee. Today, those two rivers empty into Lake Tillery, and the Pee Dee flows out of the lake.
Lake Tillery is at the south end of a series of dams built a few years earlier by the predecessor to Alcoa as part of its Yadkin River Project, which forms additional lakes and reservoirs. If one or more of those dams upstream were to fail, it could cause catastrophic flooding on property around Lake Tillery.
McCaskill, a real estate broker, went to Montgomery County seeking information about evacuation plans and maps showing which properties faced problems if the 100-year-old Falls Dam to the north on the Yadkin failed.
McCaskill said he paid for copies of the maps, and county officials allowed him to review them but denied his request for physical copies to take with him.
Trent Brooks, who was then clerk to the Montgomery County Board of Commissioners, responded to a November records request from McCaskill for information about the maps with a denial and said the county’s legal counsel said the county was “not authorized to release this information.”
County officials gave McCaskill two very different reasons for the denial, he said. Brooks claimed the maps were owned by the company operating the dams. But McCaskill said at other times county officials cited security concerns about distributing evacuation maps that could fall into the hands of terrorists.
McCaskill said he thinks county officials actually have an unrelated motive for keeping the records from public view: They don’t want information about what would happen in the case of a dam failure to become public because property values and, therefore, the property tax collected by the county, would plummet if homeowners on the lake had proof that their homes could be destroyed
“This is a pretty good picture of them covering up public information,” McCaskill said. “Do you think they really want to tell 4,000 people that they live in a dam-failure zone? They’re covering up the potential harm to people for tax dollars.”
The $3,000 question
Without the maps in hand, McCaskill decided in March to file his request for correspondence discussing him and Inskeep.
The county said it would fulfill McCaskill’s request if he paid more than $3,000 to cover the cost of searching through the county’s email system and reviewing the emails to ensure that they didn’t contain any confidential information.
The demand came in an email from an unnamed Montgomery County employee, who simply signed the email as “Clerk to the Board,” despite Brooks having previously resigned from that position and a replacement not being named. The writer using the county account wouldn’t reveal an identity when McCaskill sent a follow-up email but told McCaskill that the county had identified about 700 emails that met the criteria contained in the records request.
McCaskill was told he would have to pay more than $100 to cover the cost of the county’s IT director pulling the emails from the county’s servers, plus nearly $3,000 for the clerk to spend approximately 10 minutes per email “to determine which emails are consistent with (the) request.”
Those costs appear to run afoul of the spirit of the state’s public records law. Amanda Martin, a Raleigh attorney specializing in media law and North Carolina’s public records and open meetings statutes, told CPP that the fees the county is charging appear to be too high.
“I would say that making a request reaching back five years certainly is broad, and I would expect it to take a little time,” Martin said.
“However, I also would assume that someone in IT could figure out how to search within the email system to pull out emails (where) his name or that of a colleague appear. That doesn’t seem all that difficult to do. So I certainly would balk at the $3,000 charge.”
She also cast doubt on the idea that the county is entitled to charge anything for an effort to weed out possible confidential records.
“No, that’s not proper,” she said. “If a member of the public asks for XYZ records, they have a right to get those records ‘at cost.’ If the government decides (it needs) to look at all the records before producing them to the citizen, that’s on the government. The government agency must bear the expense of looking at each record to determine whether it is disclosable or not.”
Martin pointed to a clear statutory provision on this issue in G.S. 132-6(c): “If it is necessary to separate confidential from nonconfidential information to permit the inspection, examination or copying of public records, the public agency shall bear the cost of such separation.”
“I have no idea what the clerk plans to do in his 10 minutes-per-email review, but it’s not up to the public to pay for that,” Martin said. “I think I should be able to ask a government, ‘I would like all emails that contain such-and-such word.’ I am confident that an IT person can spit out the results from that in about 15 minutes. If they want to look at each one to make sure there isn’t some supersecret information hidden in those documents, they are free to do that, but I don’t have to pay for it.”
Martin said the law does contain a general provision that governments can make a reasonable charge for extensive use of information technology resources. But the other law specifically says the cost of weeding out confidential information is not a reasonable charge.
About those dam records
Martin also discussed the earlier difficulties that McCaskill experienced in getting copies of the dam-failure evacuation maps, noting that G.S. 132-1 decrees that documents both created and received by public agencies are public records.
“If the county received these maps, they are a public record unless there is a specific statutory authority that exempts them,” Martin said.
She noted that one possible exemption the county may have been referencing in talking about map ownership involves corporate trade secrets. However, this provision is only applicable in a small number of situations, which these maps seem unlikely to fit.
One of the requirements would be that the maps would have to be marked “confidential” when given to a government agency. McCaskill, who has viewed the maps, said there is no confidential designation on them.
Regarding the terrorism concern, Martin noted a provision in North Carolina public records law, G.S. 132-17.7, that protects “sensitive public security information or detailed plans, patterns or practices” from disclosure. But she doubted whether evacuation maps qualify for this designation. “I think the state statute is meant to protect true security information,” Martin said.
Editor’s note: Carolina Public Press Managing Editor Frank Taylor also contributed to this report.
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