Saturday, October 12, 2013 12:20 AM
Attorney general, DA question town's fees
Cooper cites 'real concerns' about records policy
By Corey Friedman | Times Online Editor
MIDDLESEX — North Carolina’s attorney general and the local district attorney say the town’s $26 per-hour fee for copies of public records might be against the law.
Attorney General Roy Cooper said his office would investigate a Middlesex town policy that requires residents to pay employees’ hourly wage if a public records request takes more than a half-hour to fulfill.
"I have real concerns about that,” Cooper said Thursday. "We’re going to have to look at that and examine that issue. It is critically important that the public has access to the people’s business and the people’s documents.”
The four-term Democratic attorney general has hinted at a run for governor in 2016. Former Gov. Jim Hunt said he met with Cooper early this year to "take his temperature,” or to gauge his interest in running for higher office.
Middlesex resident Robert Johnson said he contacted the attorney general’s office to complain about the town’s copying fees and the turnaround time for public records requests. Johnson said Cooper’s staff directed him to District Attorney Robert Evans.
"I certainly would be interested in looking into it,” Evans said on Friday. "I haven’t heard from Mr. Johnson. Certainly, if he were to contact me with that concern, I would certainly look at it and investigate it.”
The Middlesex Board of Commissioners unanimously passed the controversial public records policy on Jan. 14. Town officials charge a service fee that’s meant to reimburse Middlesex for employee salaries and benefits while workers make copies of town documents.
LAW AND POLICY
Fees apply to all requests that require more than 30 minutes of staff time and range from $21 per hour for the administrative assistant’s time to $26 per hour if the town clerk copies the records.
North Carolina Press Association attorney Amanda Martin said the town’s policy violates the state public records law and would likely be struck down if challenged in court.
Mayor Luther "LuHarvey” Lewis, who also works as Middlesex’s town administrator, was out of town Friday and didn’t return phone messages in time for this story.
Town Attorney Elizabeth Fairman, who works for the Rocky Mount firm of Fields & Cooper, also did not respond to requests for comment on Friday.
Fairman has previously said the 30-minute time limit for compiling public records without a service charge wasn’t chosen at her suggestion.
"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 told The Wilson Times for a Feb. 26 story.
Government agencies cannot charge fees that exceed the "actual cost” of furnishing the records, according to N.C. General Statute 132-6.2. The law defines 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.”
Since Middlesex employees would be at work whether or not they’re fulfilling public records requests, Martin said, their regular salary and benefits don’t qualify as actual costs for making the copies.
The public records law 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.
Attorneys for the press association don’t believe a request that takes 30 minutes to fulfill qualifies as extensive. Town officials have said that since state law doesn’t define that standard, local governments are free to decide for themselves.
A SECOND OPINION
Middlesex officials could request an opinion from the attorney general’s office on whether the public records policy complies with state law. Cooper’s office provides state government agencies with non-binding legal advice upon request, but it’s not authorized to review rules for members of the public.
"While these opinions do not have the full effect of law or court order, they provide the state’s interpretation of the legal question presented and should be complied with by state agencies and officials,” the N.C. Department of Justice says on its website.
The attorney general’s legal opinions are public records and are posted online a week after they’re issued. Cooper’s office interpreted various portions of the public records law for the University of North Carolina system in June 2009, the state treasurer in June 2006 and the secretary of state in April 2006.
State lawmakers who represent Middlesex also could request an opinion from the attorney general’s office. Sen. Buck Newton, R-Wilson, and Rep. Jeff Collins, R-Rocky Mount, said they would have to consider the issue and speak with town officials before deciding whether to do so.
Johnson said he plans to ask town commissioners to seek the attorney general’s advice during Monday’s town board meeting. Commissioners are scheduled to meet at 7 p.m. Monday at Middlesex Town Hall.
Evans said his review of the records fees as district attorney would be less formal.
"We don’t give advisory opinions,” he said. "It would not be a situation where there would ever be any public comment by my office as far as what I told the town of Middlesex or the town of Middlesex’s attorney.”
Nash County prosecutors would evaluate the town policy and advise officials whether they see a conflict between it and the state public records law, Evans explained.
During a Wilson Times interview before his speech at the Wilson County Democratic Party’s Thursday fundraiser, Cooper suggested the state public records law might need to be changed if it allows service fees like the ones in Middlesex.
"We need to look at that and possibly re-examine it and see if legislation is needed,” Cooper said.
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