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Montgomery County is sticking to its guns on a demand for more than $3,000 to process a public records request on which Carolina Public Press first reported last month.
The county reiterated that claim last week in a follow-up email to Wes McCaskill, who had initiated the request. CPP duplicated the effort, issuing a request for the same documents – county correspondence mentioning McCaskill or his business partner since 2013 – and received the same response.
Meanwhile, CPP has learned from the Department of Environmental Quality that the county was apparently on solid legal ground in earlier refusing to let McCaskill copy maps showing areas that could be affected by dam failures.
While a change to the law in 2014 says these maps are not public record, this application of the law raises concerns about whether the General Assembly infringed on the rights and interests of residents, property owners, and the real estate and insurance industries when they slipped this wording into legislation that was supposed to be about coal ash spills.
Talking about Wes
Last month, CPP reported on McCaskill’s request for public records in which elected officials or employees of Montgomery County had been discussing him or his business associate, Richard Innskeep.
The county did not contest whether McCaskill had the right to see those records. The right of anyone to request email correspondence involving government officials or staff has been well-tested in the North Carolina courts over the years, with only a few exceptions that wouldn’t apply in this case.
But the law does describe a way in which the government can charge for some costs incurred in providing records. Montgomery County’s estimated fees of $3,080.32 were based on an itemized lists of its expected costs. When CPP made its duplicate request for the same records, County Manager Matthew Woodard provided a copy of the same list.
“If you wish the county to process your request, the expense associated with the fulfillment of the request will be logged and applied,” Woodard told CPP.
“Not knowing any more at this point than the voluminous amount of data tagged by individual keyword searches … we can only estimate the time involved to review every email – containing the keyword ‘Richard,’ for example.”
The total size of the estimated costs list stems primarily from an estimate that it would take the county’s clerk-to-the-board 10 minutes to review each email in a total of 700 expected emails, at a cost of $25.34 an hour.
Other charges resulted from work that the county said its IT director would have to perform, at a rate of $41.42 an hour. They anticipated 45 minutes for this employee to build a search and identify all the records, plus another two hours to extract 700 emails and place them in a readable file.
The county also told both McCaskill and CPP that it would need four weeks to fulfill the records request once receiving acceptance of the anticipated costs.
CPP talked with media law specialist Amanda Martin, who is the chief counsel for the N.C. Press Association, for the previous article on this situation. CPP quoted portions of her opinion to Woodard and asked him to confer with the county attorney.
“If the government decides that they need to look at all the records before producing them to the citizen, then that’s on the government,” Martin said.
“The government agency must bear the expense of looking at each record to determine whether it is disclose-able or not.”
She cited from General Statute 132-6(c): “If it is necessary to separate confidential from nonconfidential information in order to permit the inspection, examination or copying of the public records, the public agency shall bear the cost of such separation.”
Martin also recommended looking at the credibility of the county’s claims about what would run up the costs. “I have no idea what the clerk plans to do in his or her 10 minutes-per-email review, but it’s not up to the public to pay for that,” she 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 result 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 acknowledged, however, that some jurisdictions have tried to impose additional costs by citing a different statute.
“Government agencies often cite GS 132-6.2(b), which permits them to make a reasonable charge for ‘require extensive use of information technology resources or extensive clerical or supervisory assistance of the agency involved.’” Martin said.
“However, G.S. 132-6(c) trumps GS 132-6.2, and here’s why. … Statutes addressing specific things prevail over statutes addressing general things. In this case, that statute that specifically addresses the use of personnel to weed out confidential information and assesses that cost to the agency, trumps the generalized statute that allows them to charge you for extensive use of IT or clerical personal.”
Woodward did not respond further after CPP provided him with Martin’s arguments.
It’s not clear why the county believes it would have 700 emails in which its employees discuss McCaskill, who owns property in Montgomery County on Lake Tillery, but is not a resident of the county.
For his part, McCaskill is also sticking to his guns. “There must be something they don’t want anyone to see in all those emails,” he said.
Dam faillure maps confidential and how they got that way
As reported previously, McCaskill’s dispute with the county initially arose over his attempt to copy maps showing which properties along Lake Tillery would be flooded if the dam upstream from the lake failed. The county let him view the maps but not make copies.
The Department of Environmental Quality explained that situation to CPP this week. Legislators changed the laws related to dam failures in 2014 as part of a series of revisions in response to the catastrophic failure of a dam on the Dan River that was used to hold back coal ash.
Under the revised law, each dam that DEQ ranks as high or medium risk requires an emergency action plan and maps of which areas would flood if that dam failed. With emergency management officials in each county having a plan and maps on hand ahead of a disaster, responses could be more timely and better organized.
But legislators said they were also concerned that terrorists might access such records and use them in an attack, making them “sensitive public security information.” So under GS 143-215.31(6), lawmakers specified that the maps would not be public records but would instead be confidential.
“While the (Emergency Action Plan)/maps confidentiality requirement was included in a law established for coal ash management, it extends to all North Carolina dams, not just those used for impounding coal ash,” DEQ spokesperson Bridget Munger said.
McCaskill is a real estate broker who personally owns property on Lake Tillery. Several years ago, signs went up “overnight” identifying the property as subject to evacuation in case of a dam failure, he told CPP.
The led him to make requests to find out whether various properties near dams in other counties were in a dam-failure evacuation zone. He said he’s received mixed results, with one jurisdiction refusing to give him the same maps it provided to a colleague with no objection.
He also noted that one major utility company posted its own copies of its dam failure maps online after a threat of litigation from another party, even though the government says its copies of these maps are confidential.
McCaskill thinks counties such as Montgomery are concerned about what will happen to their lucrative tax base along a series of lakes if everyone becomes aware that they are in a dam-failure evacuation zone.
The legal situation may also raise concerns about property rights. As McCaskill discovered, once the signs went up near his property, he couldn’t even find a company that was willing to conduct an appraisal. Yet other owners, and potential buyers, aren’t even allowed to view the maps to see which properties are affected.
The situation could also create nightmares for insurance companies if a major dam failure ever occurred.
McCaskill described devoting considerable time in looking into the issue, which would affect a large number of counties across the state. In his estimate of reliance on dams compared with other states, he said he found that North Carolina was definitely on the high end.
For more information
- Previous CPP reporting on the $3,000-plus records charge
- General Statute on examination and copies of public records
- General Statute on provisions for copies of public records; fees
- General Statute on sensitive public security information
- Rules for dam maintenance and operation
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