Former Guilford County Board of Elections member and current Summerfield Scoop Facebook page proprietor Don Wendelken was shocked recently when he made a public records request to the Town of Summerfield and was notified by town officials that it would cost him $487 to get that information.
On Friday, Nov. 15, 2019, Wendelken requested an electronic copy – not paper copies – of emails between town staff and Town Council for October and the first part of November, and, on Thursday, Jan. 2, 2020, the town sent him the following response: “The cost estimate for responding to your PRR [public records request] dated 11/15/19 is $487.89. Please advise as to whether you wish to proceed.”
Wendelken said many town officials – including Summerfield Town Manager Scott Whitaker – often don’t like the information that he puts up on his town news Facebook page and he feels as though the fee is excessive because of that. He said that the email search really just requires putting in the names, setting the time parameters and hitting the search button.
Wendelken responded to the town: “I am willing to pay for this, but I would like to know how that figure was derived? I pay taxes for a service and it appears to me like blackmail just for emails? This is directed at Scott [Whitaker]. I may need to ask an attorney what options I have to get these emails. I am still requesting how the amount of $487.89 was derived before I ‘may’ seek legal assistance.”
In an email to Wendelken, Whitaker explained the cost: “Don, $192.15 for our IT vendor to compile the emails; $295.74 for my time to review and separate confidential info.”
Whitaker added that the town’s “previous email didn’t say it, but the town would need half of this amount upfront prior to starting on your request.”
North Carolina law states the following: “The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people. Therefore, it is the policy of this State that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law. As used herein, ‘minimal cost’ shall mean the actual cost of reproducing the public record or public information.”
The law goes on to state that if, “extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved, or if producing the record in the medium requested results in a greater use of information technology resources than that established by the agency for reproduction of the volume of information requested,” the government can charge a fee that “shall be reasonable and shall be based on the actual cost incurred for such extensive use of information technology resources or the labor costs of the personnel providing the services, or for a greater use of information technology resources that is actually incurred by the agency or attributable to the agency.”
Over the years, the Rhino Times has made some very extensive public records requests to Guilford County government and the Rhino has never been charged for electronic data no matter the extent of the request.
Guilford County Attorney Mark Payne – not addressing the Summerfield case – explained his view of state law and county policy: “As to costs, a government can charge ‘actual costs,’ which is defined as ‘direct chargeable costs related to the reproduction of a public record as determined by generally accepted accounting principles,’ and cannot include costs that the entity would incur anyway. For that reason one cannot charge for the employees’ time to make copies, as that employee would be paid if they were not making copies. However, if an employee works overtime to meet a public records demand, then that overtime, it seems, could be chargeable, as the cost is incurred solely to reproduce the records.”