Don’t play politics with the people’s records

By Corey Friedman

It’s not an choice between right or left, but a simple matter of right and wrong. ncpubrec

A showdown between Attorney General Roy Cooper — a likely Democratic gubernatorial candidate in 2016 — and Republican Gov. Pat McCrory is making public records a political hot potato.

McCrory’s office charges fees of up to $54 an hour for copies of public records when records requests take the governor’s staff more than a half-hour to fulfill. The fees reimburse state government for the salary and benefits of the workers who make the copies.

Cooper, the state’s chief law enforcement officer, says the fees are flat-out wrong. He expressed serious concern last October after learning the town of Middlesex had authorized nearly identical service charges for records requests. In a letter to the governor a couple weeks ago, Cooper cautioned the governor that the fees might be unlawful.

“I believe these policies violate the spirit and perhaps the legislative intent of the North Carolina Public Records Act,” he wrote.

McCrory responded in a letter from Bob Stephens, his general counsel. The governor’s office believes state law allows the fees and wants Cooper to butt out. Stephens called the attorney general’s letter “unsolicited public policy advice.”

The dispute boils down to a difference in interpretation of state public records laws. McCrory and town officials in Middlesex say they’re just applying a special service charge the law allows for requests that require extensive use of labor or technical resources. Critics point to another passage that defines the costs government may charge and specifically excludes costs that would stay the same — like full-time workers’ salaries — if a records request hadn’t been made.

Cooper believes McCrory and Middlesex are making up the rules as they go along. Who says a half-hour of staff time is extensive? The 30-minute charge clock is arbitrary, and officials haven’t explained how or why they chose that length of time.

“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,” Cooper wrote.

From a legal standpoint, the issue is complicated. From a good-government perspective, it couldn’t be much simpler. North Carolina residents should have affordable access to public records. The steep fees our governor and the town of Middlesex are charging place the people’s records beyond the people’s reach.

Middlesex resident Becky Strickland paid $415 last month for copies of a year’s worth of the mayor’s emails. The total cost, which included $205 for six hours of staff time at $34 per hour, is more than her monthly mortgage payment.

If the service fees state and local governments charge go unchallenged, only the news media and folks with means and motivation will be able to get their hands on public records. Residents who can’t afford the exorbitant rates will be shut out.

As our public records law points out in its opening passage, the documents and files government workers generate are “the property of the people.” Officials who maintain these records are custodians, not owners. They’re in a position of public trust, and the outrageous fees some are charging betray that trust.

“The people are poorly served by barriers to obtain information they already own,” Cooper wrote. We agree.

It’s unfortunate that the issue’s now being framed in a partisan context, with McCrory’s likely Democratic rival painted as a political opportunist. The next gubernatorial election is nearly three years away, and we hope this issue is resolved long before the 2016 campaigns gear up.

McCrory is placing Republicans in an untenable position. Few GOP lawmakers want to risk alienating the sitting governor and de facto head of their party. Yet the Republicans who seized control of the General Assembly in 2010 and maintained their majority in 2012 ran on a platform of open, accountable government.

Charging an arm and a leg for public records is wholly inconsistent with what Republican lawmakers say they stand for. They should prevail upon McCrory to reverse course.

The people’s right to accessible and affordable public records is not a partisan issue. Both Democrats and Republicans should take Cooper’s words to heart: The people are being poorly served.

[Note: This was originally written as an editorial for The Wilson Times.]

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