Monday, November 11, 2013 12:44 PM
Attorney general to referee town fee fight
Residents: $26-per-hour charge 'needs to be stopped'
By Corey Friedman | Times Online Editor
MIDDLESEX — Attorney General Roy Cooper’s office wants a test case to see whether town officials are breaking state public records laws.
Assistant Attorney General David Elliott said state officials will mediate disputes between residents and town leaders over fees of up to $26 per hour Middlesex charges for copies of public records.
"With the public records law, it’s always an individual determination based on specific fact patterns,” Elliott said. "I think whether or not the policy’s illegal depends on the facts that are before it.”
The N.C. Department of Justice and Office of the State Chief Information Officer will review complaints by Middlesex residents who say they’re being charged more than state law allows for town documents. Officials will then contact Middlesex leaders for their response.
"This needs to be stopped,” said Brandie Holt, an outspoken resident who has refused to pay the records fees. "I’m tired of playing nice guy now. I’m getting to the point where I’m getting really ill.”
Town Clerk Jennifer Lambert told Holt she would have to pay $36.80 for Lambert’s "research time” in order to obtain copies of public park maintenance records from 2008-12, according to a September 2012 email obtained by The Wilson Times.
Holt said she refused to pay the fee and never received the records. Four months later, Middlesex commissioners adopted a policy authorizing charges of $21 to $26 per hour for all public records requests that take more than 30 minutes to fulfill.
"At this point, it’s not even really about the records,” Holt said. "It’s more than a year ago that I asked for those things.”
Holt and fellow resident Robert Johnson say the town’s fees violate the N.C. Public Records Act. They want Middlesex commissioners to rescind the policy.
The outspoken critics campaigned for two open seats on the town board, but lost to incumbent Harold Meacombs and newcomer Ann Lewis in last week’s municipal election.
Holt and Johnson said they’d provide the Department of Justice with past public records requests that have gone unfulfilled because of the fees.
"That deters people,” Johnson said. "The majority of people, if they want information, they’re going to say, ‘Oh, man, I’ve got to pay research fees. I don’t know what they’re going to charge me.’ You’re already paying their salaries to begin with.”
ATTORNEY GENERAL CONCERNED
The attorney general and district attorney have questioned the policy, but stopped short of saying whether it conflicts with state law. Cooper expressed "real concerns” in an interview last month.
"He believes strongly that people need to have access to public records,” Department of Justice spokeswoman Noelle Talley said Thursday. "If the cost is prohibitive for obtaining public records, that is a concern.”
Elliott, an assistant attorney general in the department’s Open Government Unit, said he’s received several complaints about the Middlesex policy and its "chilling effect” — the fees acting as a deterrent to those seeking public records.
"A lot of people are concerned about this fee in particular because it makes it prohibitive for a lot of people to get public records,” he said.
Cooper indicated his office would investigate the Middlesex fee policy. Since neither the town board nor state lawmakers have requested an advisory opinion, officials said they can’t release a written assessment of the policy.
"By law, our official opinions and advisory letters have to be at the request of government officials,” said Talley, who explained that the attorney general — the state’s top lawyer — isn’t authorized to give legal advice to the public.
Assistant attorneys general can, however, referee a dispute between residents and government over interpretations and application of the public records law.
"We’d be glad on our end to try to mediate,” Elliott said.
Mediation would be coordinated through State Chief Information Officer Chris Estes’ office. Gov. Pat McCrory appointed Estes to the post in January.
Though the CIO’s office primarily deals with information technology and oversees state computer systems, the N.C. Public Records Act establishes the information officer as an arbiter of public records conflicts.
"If anyone requesting public information from any public agency is charged a fee that the requester believes to be unfair or unreasonable, the requester may ask the state chief information officer or his designee to mediate the dispute,” a provision of N.C. General Statute 132-6.2(b) states.
The Middlesex public records 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.
Government agencies cannot charge fees that exceed the "actual cost” of furnishing the records, according to state law. 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, North Carolina Press Association attorneys 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.
Commissioners approved the public records fees by unanimous vote at their Jan. 14 meeting, but recent statements from two of the five board members indicate support for the policy could be waning.
Commissioner Dale Bachmann, who unsuccessfully challenged Mayor Luther "LuHarvey” Lewis in last week’s election, said recently that he was in favor of scrapping the controversial fees.
"We need to move forward and we need to just abolish it,” he said. "We need to just back up. It’s served nobody.”
Bachmann will leave office in January and Ann Lewis, a retired Fawn Industries manager and 50-year resident of Middlesex, will take his place on the board.
Commissioner Harold Meacombs said he’d defer to the attorney general’s office and would vote against the policy if state officials believe it violates the law.
"Until some ruling is said about it, I doubt we’ll charge for anything we give them,” Meacombs told The Wilson Times. "If it comes out that something’s wrong with it, I’ll be the first one to make a motion to stop it and take it off the books.”
Commissioners could choose to request a nonbinding advisory opinion from Cooper’s office. Johnson asked the board to do so during last month’s meeting, and commissioners took no action on the request.
Middlesex commissioners are scheduled to meet at 7:30 p.m. today at Town Hall, 10232 S. Nash St.
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