Survey finds haphazard compliance with N.C. public-records law

The Associated Press

07.06.99

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	State Rep. George W. Miller Jr., D-Durham

RALEIGH, N.C. — Expect rejection one-third of the time when you request a North Carolina city or county public record and a higher refusal rate by police agencies, which often violate citizens' rights by asking who wants the record and why.

In an unprecedented test of North Carolina's public records-access law, the North Carolina Press Association and the North Carolina Associated Press News Council sent reporters to agencies in 89 counties to request public information from May 3-7. Newspapers in the state's other 11 counties chose not to participate in the survey.

Reporters from 49 newspapers presented themselves as average citizens, as the law says they may do, at police and sheriff's departments, county health offices, city and town finance offices and school district headquarters.

Seven types of documents were sought: crime logs and crime incident reports, concealed-pistol permit applications, coaches' salaries, restaurant sanitation ratings, and expense reports for mayors and town managers. All are public records under state law, meaning the public is supposed to be able to view and copy them upon request.

Compliance ranged from 52% to 67% for six records. Attempts to obtain the seventh —the pistol permit applications — failed in all but two instances, often because the applications also contained private information and sheriffs wrongly thought that placed them off-limits.

Denials and hostility spiked at police agencies when reporters invoked their legal right to anonymity when seeking public information. Police often pressured them to reveal their names, whom they worked for and why they wanted to see the public record.

When asking got them nowhere, the Roxboro Police Department and the Montgomery County sheriff's office ran license tag checks to find out who was making inquiries. The Roxboro police chief detained a reporter while checking to see if his car insurance was current.

Chowan County Sheriff Fred Spruill's response became a refrain heard at police agency front desks from the coastal plain to the Smokies: "I don't care what you said, I am not giving you any information until you tell me who you're with."

Jan Schaffer, executive director of the Pew Center for Civic Journalism in Washington, D.C., says the results are disturbing because ordinary people are more often seeking public information themselves rather than relying on the media to inform them.

"Journalists for many years have been kind of the surrogate citizens in the sense that we try to get that information using the power of our position and First Amendment freedoms and privileges to leverage it," she said.

State Rep. George W. Miller Jr., D-Durham, one of the architects of North Carolina's public records-access law, said the survey results "surprised and disappointed" him.

"If the gatekeeper will not make the information available for public examination, then our efforts have not been successful," he said.

"If those in charge of the records do not follow the mandate of the statute, our efforts have been voided," he said.

While only two sheriffs furnished concealed-handgun permit applications — in 37% of the visits they instead provided lists of the permits granted — reporters had better success elsewhere.

Restaurant sanitation grades were shared 67% of the time; police incident reports, 65%; coaches' salaries, 64%; city and town managers' expenses, 59%; police crime logs, 54%; and mayors' expenses, 52% of the time.

In all, 794 records were requested and 452 obtained from city, town and county agencies in the 89 counties.

Many agencies supplied the requested records without asking questions or demanding payment. The law stipulates public records must be provided free or at "minimal cost." The charges that were levied ranged from a nickel per page for mayor's and city manager's expenses in Thomasville to $5 for a one-page incident report in Lincolnton.

Charges sometimes fluctuated in the same office. A clerk at the Cabarrus County health department said a list of restaurants with "C" sanitation grades would cost $50, but supervisor David Troutman charged 30 cents and then patiently explained to the reporter how the ratings were done.

Few clerks would copy the records to computer disks, although virtually all the agencies had computer systems and the law requires that records be provided "in any and all media in which the public agency is capable of providing them."

Most clerks said they lacked the know-how or technology to copy to a disk. "I would if I could," said Elmarn Holmes, the administrative assistant in the Louisburg town finance office.

North Carolina's public records law is regarded as a model of clarity and brevity. "Public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people," it says.

The law defines public information as any record made or received "in connection with the transaction of public business by any agency of North Carolina government or its subdivisions."

A citizen's reasons for requesting public records are his or her own business, the law says. "No person requesting to inspect and examine public records, or to obtain copies thereof, shall be required to disclose the purpose or motive for the request."

The law protects private data, but when protected information is mingled in a document with public records, the agency must separate the two at its own expense if someone asks for the public record.

North Carolina sheriff's departments failed in all but two instances during the survey to appreciate that legal nuance when asked to produce concealed-pistol permit applications. The applications contain public information — an applicant's name, age, address and criminal record, if any — as well as confidential information such as a Social Security number and medical history.

When sheriffs ask the North Carolina Sheriff's Association whether they should release the permit applications — as they did during the survey — the association advises them not to, says Executive Director Donna Maynard.

"We rely on the attorney general's office for guidance on this," she said. "What you have to bear in mind is the law you have (on public records) addresses particular instances, but other laws come into play that say when that law can be applied."

Cari Hepp of the attorney general's office says that's not true. Attorney general staff lawyers say public records are always public, even when mixed with personal information, she says.

Law enforcement officers resist requests

Some sheriffs simply decided on the spot that the permit applications were off-limits.

"Dangerous in the wrong hands," replied Swain County Sheriff Bobby Ogle when a reporter asked why the applications couldn't be examined.

"The personal information on [a concealed-pistol application] is too broad," he said in an interview later. "A lot of people are pulling scams using a Social Security number to get a credit card number."

Reporters were denied even when they tried showing law enforcement officials the public records statute.

"You can quote all the statutes you want," said Officer Gerald Luftin of the Granville County sheriff's office. "I'm not giving that record unless the sheriff says so. And he's not here."

Police and sheriff's officers more often than not asked why the reporters wanted the public records and whom they worked for. Nearly 64% of the time they asked why the record was needed — compared with 46% of the time at other agencies — and nearly 55% wanted an employer's name. The latter question was asked at just 36% of non-police agencies surveyed.

When unanswered, the question "Who are you?" became a big issue for some police.

"Nobody is going to look at any records without telling me who they are and who they work for," Chowan County Sheriff Spruill told a reporter seeking crime incident reports. He added, "Listen, little lady, you are going to tell me right now who you are."

"When an officer of the law asks your name, you are required to give it," Lt. Tony Roberson of the Davidson County sheriff's office told a reporter asking to see concealed-pistol permit applications.

Wrong, says Hepp. She says the U.S. Supreme Court has ruled citizens seeking public information don't have to identify themselves.

Non-police agencies were often just as insistent about identification. Bobby Plowman of the Johnston County finance office said he knew expense account reports were public records, but wanted to know why they were sought. He said it was unusual for "a stranger" to make such inquiries.

Some sheriffs said they were aware a statewide media survey was being conducted, but refused to cooperate anyway. Maynard acknowledged her organization had notified sheriffs when it learned of the survey, but insisted the survey was completed by then.