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Records flap exposes access problems
By JONATHAN CLAYBORNE, News Editor
Al Hodge returned three times to speak to a reporter attempting to inspect public records.
Hodge, surface water protection supervisor in the N.C. Department of Environment and Natural Resources' Washington regional offices, said he had pulled a stormwater permit application spread out before the reporter from a staff member's desk because the reporter had "raised such a ruckus" about seeing the papers.
The company that submitted the application had paid a $3,580 fee to enter a fast-track approval process, Hodge pointed out.
"There's a limited amount of time to review it," he said.
Hodge implied that the 10 to 15 minutes it took for the reporter to flip through and take notes on the file had delayed permitting, even though one paper in the file had been reproduced in triplicate as part of standard record-keeping procedures.
Presumably, a copy of that paper could have been furnished at most any time in the business day.
The attempts of Hodge and another DENR staff member to convince the reporter to sign a form before reviewing the records had already failed.
A resident who wishes to view public records is not required to sign a form under the state's Public Records Law, the reporter told the pair.
The other staff member had called someone in Raleigh, finally determining the form didn't have to be signed.
The records incident, inside the regional offices at a bank of filing cabinets, underscored the onset of a controversy arising from DENR's public records policy.
Staff members in the agency's regional office, seemingly offended by the timing of the Daily News' requests to see public records during working hours, had insisted that DENR has a policy asking residents to call before going to the regional office to ask for records.
Rick Shiver, DENR's assistant director for regional operations, referred to the policy during an interview.
"In terms of the policy, what I'd invite you to do is talk to our (public information officer) for the department, who is Don Reuter," Shiver told the Daily News.
When asked for a copy of the policy, Reuter acknowledged no such document exists.
"We use the Public Records Law," Reuter asserted. "The written policy is the Public Records Law."
The Public Records Law does not require residents to make appointments with custodians of records before asking to see those records.
Also, there is nothing in the law about signing a form before seeing records.
Hodge was persistent.
"If you walk in off the street," he advised the reporter, "I may not have a staff person that I can dedicate to pulling those files and doing that work for you. If you give me some up-front notice, I may be able to dedicate a person to pulling that file and doing that for you. So, if you do come without an appointment, you may not be able to get to the files that day because I don't have unlimited staff, and I need a staff person to pull these files and to bring them to you."
Asked if the reporter could pull the files himself, Hodge replied, "Because you don't know our filing system, just arbitrarily going through the files is not something that I allow anybody to do other than employees here."
Hodge concluded, "I'm not trying to be difficult. I'm just trying to keep order and stuff here in the files."
Speaking with DENR officials, members of the Daily News staff aired fears that residents not affiliated with the media -- and lacking its perceived influence -- under similar circumstances might surrender their quests to gain access to public records.
The issue, DENR staff in Raleigh and Washington repeatedly stated, is that there may be no one in the regional office to grant access to records -- there may be no one on hand to explain those records' contents, or ensure that none of the papers go missing.
"We have to make them reasonably accessible," said Susan Massengale, a spokeswoman for the agency's Division of Water Quality. "I don't think it's unreasonable, when you have a small enough staff, so you can say to someone, 'Please call us ahead of time so we can make sure we have someone available to help you with those files.'"
The Public Records Law prescribes "reasonable" access to records.
In conversations with DENR officials, the Daily News argued that asking to see public records during business hours is reasonable, especially when staff members who do not work in the field are on hand to guide record-seekers to filing cabinets.
The newspaper did not demand that the files' contents be explained.
Time and again, court cases have clearly dictated that public officers do not have to answer questions about records, noted Mike Tadych, an attorney for the North Carolina Press Association.
"If they want to, great," Tadych said, "but there's no obligation that they do it."
Tadych added that "gatekeeping policies (by record-keepers) have been overturned at the trial level repeatedly."
Providing an example, the attorney described a hypothetical case in which a resident would be required to ask a county manager's office for health department files, even though the health department would be the guardian of those files.
"If there's a warm body that can stand there with you, there is no distinction or appropriate setting of priority that whatever DENR's working on that it deems important is somehow more important than a public records request," he said.
After talks with DENR officials, access to the papers the Daily News sought was granted.
However, the newspaper opted to view a copy of one file through a local nonprofit organization after DENR's policy complicated the records search.
Reuter said he believed one of the newspaper's records requests had "created some angst."
"I do apologize that you've had some difficulty in getting the records that you need," said Shiver.
He did not disavow the policy.
Hodge, surface water protection supervisor in the N.C. Department of Environment and Natural Resources' Washington regional offices, said he had pulled a stormwater permit application spread out before the reporter from a staff member's desk because the reporter had "raised such a ruckus" about seeing the papers.
The company that submitted the application had paid a $3,580 fee to enter a fast-track approval process, Hodge pointed out.
"There's a limited amount of time to review it," he said.
Hodge implied that the 10 to 15 minutes it took for the reporter to flip through and take notes on the file had delayed permitting, even though one paper in the file had been reproduced in triplicate as part of standard record-keeping procedures.
Presumably, a copy of that paper could have been furnished at most any time in the business day.
The attempts of Hodge and another DENR staff member to convince the reporter to sign a form before reviewing the records had already failed.
A resident who wishes to view public records is not required to sign a form under the state's Public Records Law, the reporter told the pair.
The other staff member had called someone in Raleigh, finally determining the form didn't have to be signed.
The records incident, inside the regional offices at a bank of filing cabinets, underscored the onset of a controversy arising from DENR's public records policy.
Staff members in the agency's regional office, seemingly offended by the timing of the Daily News' requests to see public records during working hours, had insisted that DENR has a policy asking residents to call before going to the regional office to ask for records.
Rick Shiver, DENR's assistant director for regional operations, referred to the policy during an interview.
"In terms of the policy, what I'd invite you to do is talk to our (public information officer) for the department, who is Don Reuter," Shiver told the Daily News.
When asked for a copy of the policy, Reuter acknowledged no such document exists.
"We use the Public Records Law," Reuter asserted. "The written policy is the Public Records Law."
The Public Records Law does not require residents to make appointments with custodians of records before asking to see those records.
Also, there is nothing in the law about signing a form before seeing records.
Hodge was persistent.
"If you walk in off the street," he advised the reporter, "I may not have a staff person that I can dedicate to pulling those files and doing that work for you. If you give me some up-front notice, I may be able to dedicate a person to pulling that file and doing that for you. So, if you do come without an appointment, you may not be able to get to the files that day because I don't have unlimited staff, and I need a staff person to pull these files and to bring them to you."
Asked if the reporter could pull the files himself, Hodge replied, "Because you don't know our filing system, just arbitrarily going through the files is not something that I allow anybody to do other than employees here."
Hodge concluded, "I'm not trying to be difficult. I'm just trying to keep order and stuff here in the files."
Speaking with DENR officials, members of the Daily News staff aired fears that residents not affiliated with the media -- and lacking its perceived influence -- under similar circumstances might surrender their quests to gain access to public records.
The issue, DENR staff in Raleigh and Washington repeatedly stated, is that there may be no one in the regional office to grant access to records -- there may be no one on hand to explain those records' contents, or ensure that none of the papers go missing.
"We have to make them reasonably accessible," said Susan Massengale, a spokeswoman for the agency's Division of Water Quality. "I don't think it's unreasonable, when you have a small enough staff, so you can say to someone, 'Please call us ahead of time so we can make sure we have someone available to help you with those files.'"
The Public Records Law prescribes "reasonable" access to records.
In conversations with DENR officials, the Daily News argued that asking to see public records during business hours is reasonable, especially when staff members who do not work in the field are on hand to guide record-seekers to filing cabinets.
The newspaper did not demand that the files' contents be explained.
Time and again, court cases have clearly dictated that public officers do not have to answer questions about records, noted Mike Tadych, an attorney for the North Carolina Press Association.
"If they want to, great," Tadych said, "but there's no obligation that they do it."
Tadych added that "gatekeeping policies (by record-keepers) have been overturned at the trial level repeatedly."
Providing an example, the attorney described a hypothetical case in which a resident would be required to ask a county manager's office for health department files, even though the health department would be the guardian of those files.
"If there's a warm body that can stand there with you, there is no distinction or appropriate setting of priority that whatever DENR's working on that it deems important is somehow more important than a public records request," he said.
After talks with DENR officials, access to the papers the Daily News sought was granted.
However, the newspaper opted to view a copy of one file through a local nonprofit organization after DENR's policy complicated the records search.
Reuter said he believed one of the newspaper's records requests had "created some angst."
"I do apologize that you've had some difficulty in getting the records that you need," said Shiver.
He did not disavow the policy.
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