Monday, February 25, 2013 11:53 PM
Town: Want public records? Pay our wages
Attorney says new policy likely against the law
By Corey Friedman | Times Online Editor
MIDDLESEX — Town officials will charge residents up to $26 an hour to make copies of public records under a new policy that an attorney says might violate state law.
The policy applies to "administrative records or research requests above the normal scope of any employee’s job duties, or any request that requires more than 30 minutes to complete.” Town commissioners adopted the rule unanimously at their Jan. 14 meeting.
"Obviously, we want to get somebody everything we can all the time,” Mayor Luther "LuHarvey” Lewis said, "but if something is going to take longer than 30 minutes, we have to be able to charge the fee for that.”
Requests that take more than a half-hour to complete will be billed at the "actual cost to the town,” the rule states, which "represents the salary plus benefits of the employee performing the work.”
North Carolina Press Association attorney Mike Tadych called the policy "a bit more than suspect,” noting that the state public records law prevents government from charging residents for staff time unless a records request requires "extensive clerical or supervisory assistance.”
Lewis, who also acts as Middlesex’s town administrator, said residents requesting public records would be billed $26 per hour if the town clerk fulfills the request and $21 per hour if the town assistant copies the records.
"It depends on what staff member’s doing it and what the records are,” he said. "Every case would be different.”
Middlesex also charges a 20-cent per-page fee for copies of public records, Lewis said.
Lewis said commissioners adopted the policy to ensure that public records requests wouldn’t overburden the town’s two employees.
"We try to meet everyone’s request as timely as we can,” he said. "It’s just something that we did. I don’t think we’ve had a case yet where we’ve even used it.”
North Carolina General Statute 132-6.2 establishes the fees government agencies may charge for providing copies of public records.
"Except as otherwise provided by law, no public agency shall charge a fee for an uncertified copy of a public record that exceeds the actual cost to the public agency of making the copy,” the law states.
The statute defines the actual cost as "direct, chargeable costs related to the reproduction of a public record as determined by generally accepted accounting principles and does not include costs that would have been incurred by the public agency if a request to reproduce a record had not been made.”
Tadych said residents requesting public records could argue that Middlesex is charging them for wages and benefits that the town would have to pay whether or not they made the request.
The statute specifically allows government to assess a "special service charge” for records requests that require "extensive” staff time or information technology resources.
The service charge "shall be reasonable and shall be based on the actual cost incurred for such extensive use of information technology resources or the labor costs of the personnel providing the services,” according to the law.
Since the statute doesn’t provide an example of "extensive clerical or supervisory assistance,” Town Attorney Elizabeth Fairman said that leaves the issue open to interpretation.
"Is something that’s going to take you 30 minutes to do an extensive request?” Fairman said. "That’s really the issue. I’d say reasonable people can disagree on what extensive is.”
The mayor said town leaders developed the policy with guidance from Fairman, but she said the 30-minute limit wasn’t chosen at her suggestion.
"I don’t recall that we sat there and discussed a certain amount of time,” Fairman said. "Somebody’s got to make a judgment call on that, and apparently, the council’s decision is that 30 minutes is an extensive amount of time.”
Tadych, a partner in the Raleigh firm of Stevens, Martin, Vaughn and Tadych, said that since releasing public records is part of town workers’ jobs, a public records request meeting the statute’s requirement for extensiveness would likely require overtime or additional staff.
"Certainly, circumstances exist where surcharges for labor or IT time are exorbitant, but it usually involves a situation where folks were called in to respond to a public records request,” Tadych said in an email.
An attorney at the Rocky Mount firm of Fields & Cooper, Fairman said she’d encourage commissioners to re-examine the 30-minute time limit if it results in disputes between town officials and residents requesting public records.
"I think certainly if it had become an issue for somebody that was complaining that they didn’t think 30 minutes met the requirements of the statute, I would suggest that the town look at it again,” she said.
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