We all know that public records are the property of the people and that, generally speaking, public agencies can only charge you the costs of actual duplication – the cost of the paper, the ink and the power it takes to run a photocopier. For electronic documents delivered by email or on a thumb drive you provide, they cannot charge you anything. And you can never be charged just to look at records. But there is a specific section of the law that says they can assess a “special service charge” if your request requires “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.” What does this mean, and when is this charge appropriate? This issue was recently considered by a North Carolina trial court in Dunham v. Whitaker, 20 CVS 6454.
Some public agencies have tried to levy this special service charge in response to large records requests. If response to a request requires hours of combing through documents and separating public information from confidential and privileged information, it’s tempting for public agencies to try to recoup that cost. This was the case in Dunham. The Town of Summerfield in Guilford County attempted to charge the town’s former mayor over $9,000 as a “special service charge” when she requested two years’ worth of public emails from the town manager. The town claimed that “due to the nature of her request, the Town [would] incur significant expense to retrieve and produce the records she has requested and, therefore, as authorized by Town Policy and by N.C. Gen. Stat. § 132-6.2, the Town would assess and require that she pay a ‘special service charge’ to cover the Town for those costs incurred by the Town to search for and produce records responsive to her request.”
In Dunham, the town did not propose to use any extraordinary technological tools to produce the requested records; the plaintiff did not request any out-of-the-ordinary documents or request that the documents be produced in any unusual format. The asserted service charge was for the time that the salaried town manager and the town attorney would spend vetting the emails and pulling out personnel or attorney-client privileged records. The legislature did not define “extensive clerical or supervisory assistance,” but the law is explicit that if an agency must separate confidential from nonconfidential information to satisfy a public records request, “the public agency shall bear the cost of such separation.” N.C. Gen. Stat. § 132-6(c). That is why Ms. Dunham said she shouldn’t have to pay the $9,000+ to get the emails.
The court agreed with Ms. Dunham, writing, “[n]o public agency or public official is entitled to assess an extra fee for identifying confidential records to be withheld from public inspection and producing those that are not confidential. The ‘special service fee’ described in N.C. Gen. Stat. § 132-6.2(b) ‘cannot be charged to recover fees for time spent examining or removing confidential information from records.’ Likewise, a public agency may not pass to the public attorney fees for the review of what records must be produced under the Public Records Law and what records may or must be withheld.”
So, when is a “special service charge” appropriate? There’s no specific guidance on that, but it likely would apply if a public agency had to pay a large sum to an outside IT firm to access records. Along those same lines, if a person demanded boxes and boxes of records in hard copy that could be provided electronically far more easily, an agency might be able to charge the staff time required to make the copies in addition to the cost of the paper and ink.
One clue to the application of the “special service charge” language is found in the statute itself. “If anyone requesting public information from any public agency is charged a fee that the requester believes to be unfair or unreasonable, the requester may ask the State Chief Information Officer or his designee to mediate the dispute.” G.S. § 132-6.2(b). Among other things, the CIO is charged with managing “[s]tate information technology systems and networks, as well as associated data, developing standardized systems and processes.” Our current CIO, who has experience in the IT industry, likely would be well-qualified to assess a novel IT challenge and determine how long a solution might take. He would not be particularly qualified to say how long it should take a town official to sort through standard-format emails, flagging them as “public” or “confidential.”
Furthermore, N.C. Gen. Stat. § 132-6.2(b) and N.C. Gen. Stat. § 132-6(c) were passed at the same time and must be read together. They were drafted in 1995, when email and the Internet as we know it today was in its infancy, and the average public employee may not have had proficiency with computing basics like email, PDF, and other file formats that are standard and universal in 2022. It’s fair to assume that today’s public employee has proficiency in basic email, word processing and document formats, so it’s hard to envision when a routine public records request would trigger the “special service charge.”
The trial testimony in Dunham revealed that the Town Manager had been “exercising unfettered discretion to assess a special service charge in an amount he decides using a formula he decides to charge certain citizens to get public records they request while not charging others.” The court found that any “system that allows such discretion affords no consistency or fairness.” The court in Dunham v. Whitaker ruled from the bench that the records Ms. Dunham had requested were public records that should have been provided at, essentially, no cost. Finding that the records should have been provided long ago, the court also awarded Ms. Dunham all the legal fees she had spent to prosecute her public records lawsuit.
So, the next time a public official tries to scare you away from a public records request, know your rights. You cannot be charged for the time it takes an agency to remove confidential information. If you need proof, print out a copy of this order and share it with the problematic public agency, and write the NCPA Hotline (Hotline@ncpress.com) if you need further support.