In July, the INDY joined a coalition of six media outlets and two nonprofits in filing a lawsuit against the McCrory administration for allegedly failing to promptly provide various public records. On Friday, the case heads to mediation. If the parties can't reach an agreement there, depositions of four public affairs officials will begin next week.
The complaint, filed in Wake County Superior Court, seeks to compel cabinet members and public affairs officials to allow inspection of public records at no cost, to admit that administration policies violated the N.C. Public Records Act and to cover the plaintiffs' attorneys' fees, estimated at several thousand dollars.
The lawsuit cites 13 examples in which the administration allegedly obfuscated or otherwise mishandled records requests. In one, the INDY requested Gov. Pat McCrory's travel records in November 2013, but did not receive them until March 2015—nearly a year and a half later. Those records were heavily redacted, and the administration offered no explanations for the redactions.
Unsurprisingly, the administration denies violating state law. But ultimately, the problem may lie with the wording of the Public Records Act itself. The law says that government officials "shall as promptly as possible furnish copies" of requested records. That leaves a lot of wiggle room: What does "as promptly as possible" actually mean?
Another point of contention: Is the lawsuit about the administration's overall policy toward the handling of public records, as the plaintiffs argue, or about these 13 specific requests?
Mike Tadych, an attorney for the media outlets—the INDY, The News & Observer, The Charlotte Observer, The Alamance News, WRAL and WNCN (nonprofits N.C. Justice Center and the Southern Environmental Law Center are using their own lawyers)—says the administration's response to the lawsuit mirrors its response to records requests: "It's all about delay."
On the Wednesday before Thanksgiving, McCrory's legal team—which did not respond to the INDY's requests for comment by press time—asked for a court order prohibiting state officials from having to provide testimony about journalists' requests for public records or any documents beyond those related to the 13 requests cited in the complaint. The administration asked the court to stay this fact finding, pending mediation, which is its right under the law, and later filed a motion to designate the case as "exceptional," meaning a judge would be selected from a mutually agreed-upon list to hear the case and "to determine the appropriate scope of discovery."
One problem: The McCrory administration would not agree to anyone on the plaintiffs' attorneys' list of recommended judges. After filing the motion to stay the discovery, the administration's attorneys informed the plaintiffs that four public affairs officials—McCrory communications director Josh Ellis and public affairs officers with the Department of Environmental Quality, Department of Transportation and the Department of Commerce—wouldn't be showing up for depositions scheduled for Dec. 1–4.
Around this time, the plaintiffs asked the judge currently overseeing the case, Don Stephens, to appoint a mediator. He did, and a mediation session is now scheduled for Jan. 8. If the parties can't come to an agreement there, the case—and the depositions—will crank up again.
In an earlier filing in September, McCrory's defense attorneys argued that the administration had already produced all of the requested records mentioned in the lawsuit, which in their view rendered the entire case moot.
They then shifted the blame to the media outlets making the requests: "The requests are often extremely broad. Many times such requests are made without regard to the burden placed on taxpayer resources, the amount of time and energy it takes to identify responsive records, and the time it takes to review each record to ensure that information protected by law is not released inadvertently."
Tadych says the state is treating the lawsuit as if it were just about those 13 records requests and not the bigger picture.
"In the introduction of the complaint, we say it is a systematic ignoring of public records requests, and that is what the case is about," says Tadych. "They are pretending those sentences are not in the complaint, which is yet another delay tactic. We want to see some systematic procedures put in place to ensure a prompt response to future records requests."
But it's not clear what these procedures would look like. Unlike the federal Freedom of Information Act—which gives a time limit of approximately one month for a standard public record request to be fulfilled—North Carolina's law does not set specific parameters. To clear things up, the General Assembly would have to amend the Public Records Act to define what "as promptly as possible" means.
Short of that, the question will likely keep heading back to court.
This article appeared in print with the headline "Delay game"