Assessing Access To Public Records In NC
6:05 pm
Fri August 24, 2012

Assessing Access To Public Records In NC

Just about anything a government official writes down is subject to public records law. . . which means, you can get your hands on it. That includes internal memos, emails officials send and even the minutes from many meetings held behind closed doors.
But, actually getting those documents can sometimes be a challenge
Most people have never tried to get public documents like this, so here's a real-life example. This is an email exchange between someone who calls himself "George Brown" and various people at the Charlotte-Mecklenburg Police Department.
October 24, 2011
"Dear Mr. Horton" (the IT guy for CMPD)

CMPD records room. Photo: Julie Rose

"I am writing to request emails sent and received . . . for all of 2011 . . . for the following personnel." (Then he lists the city manager, police chief and 10 other high-ranking members of the department.)

A week goes by and no response. George Brown follows up with another email.
Twenty minutes later, Horton writes back: "My apologies for the delay in responding. To ensure consistency, public records requests are handled by our Public Affairs department. I've passed your request on to Captain Brian Cunningham."
Two days later. George Brown sends another email. He's unhappy at having been passed off to public affairs.
"I appreciate you writing back to me, but I'm not sure why you are not the person to ask for the records involved. Don't you have access to these records? This is just a public records request for emails in the system that you have. Can you assure me that no records in the system are destroyed? Can you assure me that you are working on that request?"
Horton writes back immediately: "As stated before, Captain Cunningham is responsible for all public records requests. Any inquiries should be directed to him."
George Brown is getting impatient and suspects the police are stalling so they can delete emails. He fires one off to Cunningham, the public information officer.
Cunningham responds three minutes later and copies an attorney at CMPD: "Your request is being reviewed. Please call me if I can help you further. Thanks."
Brown is not interested in speaking by phone and sends increasingly frustrated emails asking for the status of his request.
This kind of back and forth is very common when making a public records request of any government agency. CMPD Attorney Mark Newbold knows it's frustrating and that it makes people suspicious.
"We do not try to hide or bury anything, but there are some things under the law we can't release, so we have to go through this stuff to make sure we don't do that," explains Newbold.
Often that includes details about an ongoing investigation or certain personnel information, says Newbold.
Hence the email message George Brown gets from CMPD on November 9th - two and a half weeks after initial request.
"In order to fufill your request . . . the city IT folks will need to spend many hours gathering the emails and then city attorneys will need to review them to determine what is public record."
If Brown doesn't narrow his request somehow, CMPD warns, "it will be many weeks before we can comply and there may be a charge involved for such a voluminous request."
Brown is not interested in narrowing his request or meeting to talk about it. He sends a barrage of emails accusing the city of hiding something. A CMPD attorney initially tries answering the accusations, but Brown is having none of it and wants the emails he requested now. CMPD stops responding in late November.
CMPD Attorney Mark Newbold says the department doesn't have the resources for that kind of back and forth.
CMPD doesn't have someone dedicated full-time to answering public records requests - nor does City Attorney Bob Hagemann.
"I do not believe that the law requires the city to drop everything else it has to do to serve the public, to respond to a public records request," says Hagemann. "On the other hand, we do have an obligation (to provide public records). We recognize that obligation. So it's a balance."
Hagemann says filling requests has gotten harder and more technical, now that so much government business happens by email.
What about George Brown's request for all those CMPD emails? It's been seven months, and according to the department's log of public records requests, Brown has yet to get them. State law only requires requests to be filled in a "reasonable" amount of time - which is far too vague for Beth Grace, with the North Carolina Press Association.
"And the biggest problem that we see is there's no consequence," says Grace. "If I'm a government official and you walk in and ask me for info and I say, 'No way, hit the door and plus I'm gonna follow you and kick your dog,' you have no real recourse except to sue me."
If you can't sue, it helps to be able to write like a lawyer: be specific, know exactly what you're after and what the document is called.
Of the 115 requests CMPD received since the start of last year, nearly 40 percent were from lawyers and about a third of them got a full response in a month or less. By contrast, there other records requests going on five and six months without a resolution - they tend to be a lot more broad and complicated. Many are from people like George Brown who appear to be linked anonymous blogs that are highly critical of CMPD.
Newbold - the CMPD Attorney - the best way to get what you want is to be willing to talk it over.
But, anonymous requests are allowed and Newbold says, "if it's a public record (and it clearly is) and we haven't turned it over, then we should be turning that over."
Then again, North Carolina's public records laws leave a lot of wiggle room for governments, which is why the state earned an "F" for "public access to information" on a recent report card by a journalism collaboration called the State Integrity Investigation.
Most states do better, says Beth Grace of the NC Press Association. "Our laws are about as weak as they come. I would put in consequences. I would put in fines. I would clarify as much as I could about what is and what is not a public document as far as email and I would err on the side of openness, always."
So long as North Carolina's law lacks those things, Grace says it's up to local governments and public officials to decide just how open they'll be - both in releasing documents and in creating them to begin with.
Especially email correspondence. Public officials know anything they write could end up in a records request.
"Cause once you hit that key, it's there," says Jerry Orr, Charlotte Aviation Director. He says he uses email, but sparingly. "You want to say as little as possible. In case you change your mind, you have that much less to deny."
Orr has even more motivation to be careful, since all of his emails can be read by the public on a little-known computer set up in the city's communication office. Emails sent and received by Charlotte's mayor, city manager, transit director are on there too.
Beth Grace says that's an impressive commitment to openness.
It's also worth noting that persistent public records requests for government email correspondence inspired the city to set up the computer in the first place.

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