McCrory to revise contentious public records policy

A policy put in place last year by the governor established "special service fees" for public records requests requiring more than 30 minutes of staff time to complete. The move drew the ire of journalists and other open-government advocates across the state, who argued that the rule would result in hundreds of dollars of charges for routine requests and effectively double-bill for records already funded by taxpayers.

"Quite frankly, that didn't sit well, and I get that," McCrory General Counsel Robert Stephens said this week. "So, we're going to make a change there."

Stephens said the new policy would increase that time limit and lower the hourly rate for labor, which is currently equal to the "actual cost of the holder's labor, both salary and benefits." In the case of an agency like the Department of Health and Human Services, that's been about $46 an hour for an IT staffer charged with pulling emails from the state's archive system.

The new policy will apply uniformly to all eight cabinet agencies, McCrory spokesman Josh Ellis said.

"What we're going to do now is have something that will be across the board and will be fair and reasonable," Stephens said.

Although the governor's staff is still working on the cost details, they're considering several options, including a flat rate set to the lowest pay scale.

"One of the philosophies is that the charge will not in any case be greater than actual cost of responding to request," Stephens said.

The time limit will also receive "quite a bump up," he said.

The governor's original policy drew from a provision of the North Carolina public records law that allows for special service charges in cases where responding to a request would require "extensive" technical or clerical resources.

Attorney General Roy Cooper, who as a state senator in 1995 authored a revamp of the state's public records law, told McCrory in a letter in late January that the governor's records rules "violate the spirit and perhaps the legislative intent" of the law.

Neither legislation nor case law has defined the term extensive. But Stephens said identical language in Florida's public records law prompted an appellate court there in 2008 to uphold a county's definition of more than 15 minutes.

In his response to Cooper in February, he defended the charges as a way for state and local governments to hold down costs in an era of increasingly large requests.

"The number of requests that come in has skyrocketed," Stephens said this week. "The broadness of the requests have been stunning to me."

He said he still has those concerns. But after a conversation with attorneys at Stevens Martin Vaughn & Tadych, a Raleigh firm that regularly represents media outlets including WRAL News, he said he's confident both sides can work together.

"It was really, I thought, a fruitful meeting," Stephens said. "Everybody in that meeting agreed that, in order to make that public records process better, both the requester and the responder need to be part of the process of making improvements."