In government record requests, 'public' doesn't mean 'free'

Over the last few months, she's amassed a collection of public records that now cover her kitchen table in orderly stacks.

Town Council meeting packets. Travel and reimbursement receipts. Lists of vehicles owned by the city. All of them the result of requests she's made to dig deeper into the inner workings of this small city about 30 miles east of Raleigh.

The largest stack by far is a thick collection of emails from Middlesex Mayor Lu Harvey Lewis Jr. She paid copy costs for all 1,023 pages, a routine expense under North Carolina law.

But on top of that charge was a more unusual one: an hourly rate for the mayor's time. All told, the request cost her about $415.

Government officials say these charges are necessary to deal with burdensome requests that often require IT savvy to complete. But some public record experts and government transparency advocates say the way state agencies and municipalities have interpreted that provision violates at least the spirit of the law.

"I was very shocked," Strickland said. "I don’t think he thought I’d pick them up. That’s more than my mortgage payment."

But Strickland paid the bill, becoming the first of the town's 882 residents to pay a special service charge for public records.

"They're taking the special services fee to a whole other level," Strickland said.

Lewis, who also serves as the town administrator and interim public works director, said council members passed the public records policy unanimously last year in response to a dramatic increase in requests from a few citizens.

"We determined that 30 minutes would be an extensive request for our office, based on the fact that we have two employees," Lewis said. "We felt like, if we're working for someone longer than 30 minutes, it wasn't fair for the rest of the people in town to pay that bill."

Prior to July 2012, Lewis said, the town had seen only a handful of public records requests that were much smaller.

Frayda Bluestein, a professor at the University of North Carolina at Chapel Hill School of Government who specializes in the state's public records law, said there's no doubt that the explosion of electronic records has impacted the size and scope of requests.

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"There's a lot of labor involved with identifying the records, collecting them, reviewing them, making them available – mostly a function of the sheer volume," Bluestein said.

Those actions, she said, do have a cost. But there's some uncertainty when comparing the hunt for more traditional paper records with those that take more technical expertise to retrieve.

"The real gray area is this question of whether you can charge for the time it takes someone to look through those records and decide what's going to be produced," Bluestein said. "In the paper world, we've generally said no."

North Carolina's public records law is unclear about what exactly triggers these special service charges, saying only that they may apply when an agency uses "extensive" technical or clerical resources to fulfill the request.

"What is an excessive amount for a small town that only has three employees versus a state agency that has more access to resources to respond to records requests?" Bluestein said. "I'm not sure there's a one-size-fits-all answer."

But since 2013, many agencies have adopted the 30-minute threshold, regardless of their size or technical capability.

A memo from Gov. Pat McCrory, sent to all cabinet agencies in 2013, set that time limit as the definition of extensive. Any request that takes longer can incur hourly charges equal to both the salary and benefits of whomever is responding.

In an email Monday morning, McCrory Communications Director Josh Ellis said his office is considering a few changes to that policy, including lowering the hourly rate and raising the time threshold before they start charging.

"It's my goal that, by better using existing software, we'll reduce hours needed to process requests, thus cutting costs to the agencies and those making the requests," Ellis said.

The state Department of Health and Human Services also charges a special service fee, which according to spokesman Kevin Howell is mostly applicable for more technical requests. That can mean businesses and law firms asking for Medicaid data or journalists requesting employee emails.

"When you're requesting emails, especially a large volume, that does require an IT person with knowledge of how to pull that information," Howell said.

For many of WRAL News' requests, that charge comes out to about $46 an hour, billed in 15-minute increments.

He said the DHHS policy, which the agency developed on its own, existed prior to the McCrory administration. Yet, few requests from WRAL News prior to 2013 triggered special services charges.

That potential "chilling effect" worries the office of Attorney General Roy Cooper, which in February reached out to the town with an offer to mediate future disputes as prescribed in the public records law.

"That's the concern: that people go to request public records, are told the costs and drop the request because the costs are too high to bear," state Department of Justice spokeswoman Noelle Talley said.

It wasn't the first time Cooper, who as a state senator in 1995 authored a revamp of the state's public records law, waded into the special service charge issue.

"Having those who make large requests incur some costs for using an extensive amount of public resources is a simple matter of fairness to the taxpaying public," Stephens said in the letter.

That's the position Lewis and members of the Middlesex Town Council have taken. He says the vast majority of people looking for records from the town won't ever have to pay the charge. But he said he's against the notion of having the rest of the town foot the bill for a few burdensome requests.

"If I had 10 people asking for the amount of public records this one person is asking for, I’d have to go up on taxes 5 cents and hire another person," Lewis said. "No questions asked."

Although he said he doesn't dismiss the time it takes government employees to respond to large requests, Mike Tadych, a lawyer who regularly represents media outlets such as WRAL News across the state, said he doesn't think "legislating to the lowest common denominator" is the way to go.

"It may be a harbor for people who are upset with one position or another," Tadych said. "But I guess my feeling is, 'Do you legislate to the abusers?' Or do you say, 'You know what? That's one of the prices you pay for a democracy.'"

Lewis doesn't buy that logic.

"It might be the cost of a witch hunt," Lewis said. "If you moved in, wouldn’t sitting down with somebody that’d been here forever and talking about things going on in Middlesex make a lot more sense than just getting a bunch of records, reading them and forming your own opinion? It would make more sense to me."

But that's not good enough for Strickland, who chalks the town's policy up to a general resistance to releasing details about its leaders' transactions. In most cases, she said, public records can be far more effective than conversations with politicians in shining light on the government.

"The documents are the only way to get at the truth," Strickland said.

Although she's paid almost $1,000 for the records stacked on her kitchen table, Strickland said she'll continue making requests and pushing the town toward more transparency.

She said she won't stop voicing opposition to fees for records the town already creates with her own tax dollars.

"This public record act expense issue has to get resolved one way or another," she said. "That’s just in the public’s interest."