McCrory staff demanding payment for public records
Posted November 26, 2013
Raleigh, N.C. — As a candidate, Pat McCrory pledged a transparent and accountable government. But now that he is governor, those seeking access to public records are often met with long delays and unprecedented demands for payment.
McCrory's staff has interpreted a one-sentence clause in North Carolina's public records law as providing broad authority to assess a "special service charge" on any records request taking more than 30 minutes for an employee to process. Invoices totaling hundreds of dollars have also been assessed for requests for digital copies of emails that have routinely been produced by past administrations without charge.
The fees appear to run contrary to the primary principle expressed in North Carolina's public records law, which says government documents "are the property of the people" and that copies should be provided "as promptly as possible" at "free or at minimal cost."
Agencies can charge under the law for expenses related to the actual cost of duplication, such as the cost of sheets of paper or a CD. However, there is no mention of a 30-minute limit on staff time.
Lawyers representing some of the state's largest newspapers and broadcasters have advised their clients that the demands for payment are "unjustified, improper and in violation of the law." Media organizations have been advised to pay the fees only under protest.
Mike Tadych, a Raleigh lawyer who specializes in First Amendment cases, called the fees unprecedented.
"The special service charge for administrative time in excess of 30 minutes has the potential for enormous impact on accessibility of public information and is inconsistent with the notion that these records belong to the people," he said.
McCrory, a Republican, took office in January. However, media outlets began receiving invoices for records requests only in recent months.
Tadych and other media lawyers met in early October with Chief McCrory Legal Counsel Bob Stephens, Budget Director Art Pope and Communications Director Kim Genardo to discuss the new fee policy. Tadych said there has been no progress as a result of that meeting or subsequent talks.
Genardo said in an interview last week that the administration has processed many smaller public records requests without charge, including some filed by The Associated Press. But she stood by the policy of charging fees for requests that take more than 30 minutes.
"I can tell you that with extensive staff time, we are going to charge. Because everyone here has a job to do and a job function. And, yes, we do have to facilitate public records," Genardo said.
Top managers at some of the state's leading news outlets said they hope McCrory will change the policy.
"This is clearly an attempt to make public information more difficult to get," said John Drescher, the executive editor of The News & Observer in Raleigh. "These are records that already exist and that the public has already paid for. It's just a matter of the McCrory administration providing a copy of them."
Rick Gall, the news director at WRAL-TV in Raleigh, said his station had paid hundreds of dollars in fees for records under protest and expects to pay hundreds more. But he worried whether such charges might have a "chilling effect" on smaller media outlets or average citizens seeking records.
"I would hope that through discussions between the media coalition, our attorneys and state officials, that somehow we would work out a resolution to this that does not involve us paying what we consider to be inordinate and unfair fees," Gall said.
A coalition of 10 media companies that included the AP, the N&O and WRAL sued Gov. Mike Easley in 2008 over his administration's mass deletion of emails that were public records. That lawsuit was settled in 2009 through an executive order issued by his successor, Gov. Beverly Perdue, that requires all state employee emails to be archived for at least 10 years.
To meet that order, the state spent more than $1 million to automatically archive emails sent or received over state computer servers in a searchable database. At the time, officials said the system allows state employees to easily search and copy archived emails without assistance from information technology staff. Step-by-step instructions for the process are posted on a state website.
But the McCrory administration claims producing copies of emails requires specialized assistance from IT workers at a cost to the requester of $54.47 an hour. In addition, McCrory's staff says it may also hire temporary workers to handle public records requests, at a cost of $21.73 an hour.
Among the state agencies that has left some records requests pending for months and demanded hundreds of dollars in payments is the N.C. Department of Health and Human Services. The agency has been under fire in recent months for hiring former political staffers at high salaries for jobs in areas for which they have little experience, huge payments to politically connected contractors and botched roll-outs of computer systems for processing Medicaid claims and food stamp applications. Those issues came to light, in large part, through public records.
At a legislative oversight hearing last month, DHHS Secretary Aldona Wos suggested complying with the public records law is burdensome.
"It is very time-consuming for us and is pulling us away from the work we should be doing, whether it's Medicaid reform, whether it's now the federal shutdown, whether it's sequestration," Wos said.
Wos' agency has at least 17 employees working in its public affairs office, according to an internal staffing plan. Only one is currently tasked with handling public records requests. That employee, Kevin Howell, is a lawyer who previously worked as the communications director for the N.C. Republican Party.
Drescher said the state has a large contingent of well-paid public information staff that should be more than capable of fulfilling requests in a timely manner and without charging excessive fees.
"This policy makes it a lot more difficult for the public to know what's going on in its government, which they pay for," Drescher said.
Follow Associated Press writer Michael Biesecker at http://twitter.com/mbieseck