By Corey Friedman
Officials have thus far refused to seek Attorney General Roy Cooper’s opinion on whether the town’s $26-per-hour fees for copying public documents violates the North Carolina Public Records Act. Perhaps that’s because the state’s top law enforcement officer has already called the outrageous fees into question.
Cooper expressed “real concerns” about the Middlesex policy last month and indicated the N.C. Department of Justice would investigate. District Attorney Robert Evans has also said he’d review the town’s fees.
We’d expect that town commissioners would take notice when the state attorney general says a policy they passed might be against the law. Instead, the concerns Cooper and Evans expressed were met with indifference and inaction.
Outspoken resident Robert Johnson asked Middlesex commissioners to request a written legal opinion from the attorney general’s office during October’s town board meeting. Commissioners offered no response, and the mayor wouldn’t talk about it after the meeting.
“No comment,” Mayor Luther “LuHarvey” Lewis told The Wilson Times, shaking his head for emphasis. “We’ve already addressed that.”
It’s bad enough that Middlesex commissioners wouldn’t give the policy a second look when residents complained. Still worse, they ignored the town attorney’s suggestion to review the policy, which the newspaper reported in February.
Shrugging off the skepticism of both North Carolina’s attorney general and Nash County’s district attorney suggests deep denial. Surely Cooper, who worked with the N.C. Press Association to publish an open government guidebook, knows a thing or two about the public records law. When he speaks, town leaders ought to listen.
State law prohibits government agencies from charging fees that exceed the “actual cost” of furnishing public records. The statute defines “actual cost” in detail and specifies that it “does not include costs that would have been incurred by the public agency if a request to reproduce a record had not been made.”
Here’s the problem: The fees Middlesex charges are meant to reimburse the town for the salary and benefits of the employee fulfilling the records request. If that employee’s already on the clock, the cost to the town is the same whether he or she is copying public records or not.
Lewis points to a provision in the law that allows agencies to add a service charge to records requests that require “extensive” staff time or information technology resources. He thinks 30 minutes — 1.25 percent of a standard 40-hour workweek and the minimum amount of time employees can receive for lunch breaks — qualifies as extensive.
Most reasonable people would agree that such loopy logic doesn’t pass the smell test.
Officials seem content to ignore the copy-fee controversy in hopes that it will go away. It won’t. Cooper’s words indicate that the attorney general’s office will review the Middlesex policy whether or not town leaders ask for his advice.
Lewis faults the newspaper for what he calls its negative coverage of Middlesex government. That’s akin to shooting the messenger. If the town’s reputation has suffered, it’s because of leaders’ actions and inactions alone.
Truth is, we’re eager to use this space to give Lewis and his commissioner colleagues a pat on the back. If they reverse course and scrap the problematic policy, they will earn our praise for listening to Middlesex residents and legal experts.
Persistence may be a virtue, but mulishness is a vice. Town leaders are stubbornly defending a rule that almost definitely puts them at odds with state law. Fighting this losing battle will only hurt this town of friendly, hardworking folks.
Stamped on the town seal are the words “Rising to the Challenge,” the official Middlesex motto. Today, we challenge commissioners to transform their town from an unrepentant open-government offender to a leader in providing public access to public records.
[Note: This post was originally written for The Wilson Times.]
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