Tuesday, March 18, 2014 11:47 PM
Towns are public records battlegrounds
Fee fight spreads from Middlesex to Bailey
By Corey Friedman | Times Online Editor
BAILEY — Town Hall is becoming the latest battleground in a statewide fight over how much government can charge for copies of public records.
Bailey commissioners on Monday fended off criticism from vocal Middlesex residents after voting to raise records fees last month. The town boosted its rate from 10 cents to 20 cents per page and added a $1 fee for the first page in each public records request.
"I hadn’t done a study on it or anything,” Commissioner Harold Flora said, "but I thought what we charged was fair.”
Robert Johnson, who lives in Middlesex and is a longtime critic of high public records fees there, accused Bailey leaders of choosing an arbitrary fee that isn’t based on the cost of making copies. He pointed out that most local cities, towns, office supply stores and print shops charge no more than 10 cents per page.
"How do you come up with an exact cost twice the amount charged by a for-profit business and nearby towns?” Johnson said. "It was easy: You just made it up.”
Wilson and Rocky Mount city offices charge 5 cents per page, Johnson told the Board of Commissioners, while Nashville and Nash County charge 10 cents. The town of Spring Hope charges no copying fees, he said.
Public records fees became a flashpoint in open government skirmishes last year when Gov. Pat McCrory’s office and a handful of cities and towns — including Middlesex — started charging high service fees for records requests they consider extensive. McCrory’s office has charged more than $54 per hour for records, while Middlesex charges up to $34 an hour.Becky Strickland paid $415 for a year’s worth of Middlesex Mayor LuHarvey Lewis’s emails earlier this year. She estimates she’s spent more than $1,000 on copies of town records. Open government advocates say the fees discourage residents from asking for public records and make the documents prohibitively expensive for most people.
"We’ve got a 30 percent poverty rate in Middlesex,” Strickland previously said. "Who can afford this? We have people working week to week and paycheck to paycheck, and they can’t even afford the 20 cents a copy, much less the hourly rate.”
Attorney General Roy Cooper, lawyers for the North Carolina Press Association and Middlesex’s own town attorney have all raised concerns about the controversial fees. Cooper has said fees designed to reimburse government agencies for staff salary and benefits during the time it takes to copy public records may be against the law.
"The people are poorly served by barriers to obtain information they already own,” Cooper wrote in a Jan. 28 letter to McCrory.Tar Heel State attorneys, academics and journalists discussed the growing trend of staff-time surcharges Monday during the North Carolina Open Government Coalition’s annual Sunshine Day at Elon University. The event coincides with Sunshine Week, a national initiative to promote government transparency on the local, state and federal level.
BAILEY: FEES FAIR
Businesses that presumably make a profit or at least break even on copies charge less, Johnson explained. OfficeMax charges 9 cents per page, Staples charges 10 cents and FedEx Office 11 cents a page.
"Our board is our government, our elected officials,” Middlesex resident Edna Mount said. "We, the people, are the government. I feel as though we are taxpayers, these are our records, and we shouldn’t be charged for what’s ours.”
The Bailey Board of Commissioners voted in February to increase town copying fees to recoup the cost of ink, paper and electricity. Mayor Tim Johnson said Town Hall has seen a surge in records requests from Middlesex residents seeking documents on the Bailey-Middlesex Park, a joint venture of the two towns.
"This board has made it very clear that the only reason you changed your policy is to slow down citizens from getting information on the Bailey-Middlesex Park,” Robert Johnson said.
Town Clerk Becky Smith had asked the board to adopt a formal public records policy because Bailey did not have one in place. Commissioners suggested raising the fee for making copies and settled on the 20-cent figure unanimously.
However, Bailey commissioners chose not to charge a special service fee for records requests the town considers extensive. Middlesex charges up to $34 an hour when a public records request takes more than a half-hour to fulfill.
"The board basically has decided they didn’t want to have to deal with all the scrutiny and the overall headache, with what our neighboring town has had to deal with,” Mayor Tim Johnson previously said.
During a time reserved for town commissioners’ remarks, Flora opened the floor to those in attendance at the meeting, prompting a back-and-forth exchange between Middlesex residents and Bailey board members.
"I’ll ask the general public,” Flora said. "Is that not fair?”
Johnson, Mount and Brandie Holt — all of Middlesex — criticized the fees. No Bailey residents offered feedback. After the meeting, the mayor said he’d consider reviewing the fees if Bailey residents complained.
"I think what we did is right,” Commissioner Rocky Winstead said.
Governments that charge fees for the time it takes to compile and copy public records rely on a provision of state law allowing a special service charge for requests that require "extensive use of information technology resources or extensive clerical or supervisory assistance.”
Cooper and N.C. Press Association attorneys Mike Tadych and Amanda Martin say the 30-minute time limit was chosen arbitrarily and requests that take 30 minutes or more to fulfill do not qualify as extensive. State labor laws require a minimum 30-minute meal break, and a half-hour is 1.25 percent of a full-time employee’s standard 40-hour workweek.
"The legislature did recognize that there were special circumstances where ‘extensive’ requests would be made, so a ‘special service charge’ was allowed,” Cooper wrote. "Although there are no specific North Carolina cases deciding this issue, I question whether a 30-minute standard constitutes ‘extensive’ as that term is used in the law.”
The same paragraph authorizing special service charges states that agencies may not charge more than the "actual cost” to reproduce records and that the figure "does not include costs that would have been incurred by the public agency if a request to reproduce a public record had not been made.”
Tadych and Martin said an employee’s regular wages and benefits do not qualify as part of the "actual cost” government may charge because agencies would incur the same cost whether or not the workers compiled public records.
If those provisions of the law are in conflict, the governor’s office argues that the authorization of special service fees supersedes the definition of actual cost. In a Feb. 7 response to Cooper’s letter, McCrory general counsel Robert C. Stephens Stephens notes that the service charge is allowed "notwithstanding the provisions of this subsection.”
"We do not agree that this charge violates either the spirit or the legislative intent of the Public Records Act,” Stephens wrote. "It was neither the legislative intent nor the spirit of the public record laws to expect taxpayers to subsidize large, time-consuming and expensive public records requests that we so frequently receive today.”Strickland, who became the first person to pay fees for staff time in Middlesex this January, has said she is considering a lawsuit.
The North Carolina Supreme Court has instructed lower courts that the public records law "is to be read liberally in favor of public access to records and information.”
CHANGING THE LAW
If open government advocates and state and local government can’t agree on how much agencies can legally charge, Cooper suggested that state lawmakers amend the North Carolina Public Records Act to define what qualifies as an extensive request and outline permissible fees.
State Rep. Jean Farmer-Buttefield, D-Wilson, said letting agencies set widely varying rates for public records requests could result in "several different policies within the same county for different agencies.”
"That’s confusing, and it causes problems,” she told The Wilson Times. "The clarity of the statute is critical. It needs to be more specific. People need to be consistent in how they apply the law. In order for them to do that, it seems like we need to go back and revisit that issue.”
Farmer-Butterfield and state Sen. Angela Bryant, a Rocky Mount Democrat, said they want state law to specifically ban the fees McCrory, Middlesex and some other local governments in North Carolina are charging.
"I think paying the pay and benefits of the worker making the copies is in and of itself unreasonable,” Bryant said. "This is part of their job. That is, on its face, unreasonable to me.”In a polarized political climate, Republican state lawmakers are less likely to condemn the fees. Some have suggested that Cooper, a likely Democratic candidate for governor in 2016, is using the issue to score points against McCrory, a first-term Republican.
Sen. Buck Newton, R-Wilson, said the state needs to strike a balance between residents’ right to review public records and the strain that intensive records requests can put on government offices. Middlesex has just two clerical staffers, a town clerk and an administrative assistant.
"You definitely want to make sure citizens have free and open access to public records consistent with state law in the tradition we’ve had in this state,” Newton said. "At the same time, we’ve got to find a way to minimize the downside when people are on great big fishing expeditions that take hours and days. I’ve seen some that take weeks to compile.”
Mount, a Middlesex resident who addressed the Bailey board Monday, has a simpler view.
"When we walk in and ask for our records, I think it is unfair to charge a person (for staff time),” she said. "That, to me, is double-dipping. They’re already getting a salary from the taxpayers.”
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