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YOUNGSVILLE — Town officials estimated The Wake Weekly would have to pay a fee of about $70,000 before the town could comply with a public records request the paper made this month.
Legal experts called the fee “insane” and “shocking.”
The Wake Weekly requested copies of emails and text messages sent or received by Youngsville Town Administrator Phil Cordeiro in May or June that were related to former Police Chief Daren Kirts — who suddenly retired in June — or to former police department administrator Mellisa “Missy” Dillard, who was fired from her job in May. The town has only said that Dillard was fired for “unsatisfactory performance” and has refused to release additional information, citing restrictions in state law.
Cordeiro, the town’s highest-ranking employee, claims that it would likely take a third-party company hundreds of hours to search through and find the emails requested by The Wake Weekly. He said the newspaper would need to pay for that service so that Youngsville taxpayers do not bear that cost.
Cordeiro initially resisted The Wake Weekly’s suggestion that he locate the emails using the search function of his email software, saying which emails are found may be arbitrary. He said he would ask the town’s attorney if such a method would be legal, but added the method would be less accurate than hiring an IT company to perform the search.
Cordeiro indicated that he would be willing to work with The Wake Weekly to find ways to reduce the cost, and has said that he has reached out to the town’s contracted information technology company, Systech, to ask for a more accurate estimate. Cordeiro said that his initial estimate was a “back-of-the-envelope calculation.”
As of press time, Cordeiro had not provided The Wake Weekly with the new estimate.
“I do think that this is a very broad request and (it) would take a lot of time and effort to accurately satisfy,” Cordeiro said. He claimed that he did not have “the knowledge, skills or abilities” needed to find the emails in question and insisted the IT company, which would charge as much as $100 per hour, would be needed.
Cordeiro also said he didn’t have the time to find the emails for The Wake Weekly himself.
CALCULATING THE FEE
The Wake Weekly requested the emails from Cordeiro on July 1. In response, Cordeiro initially estimated The Wake Weekly would need to pay $36,167.
Usually, fees for public records are limited to the costs for things like paper and ink. But Cordeiro cited General Statute 132-6.2, which says the town can charge a special service fee for “extensive use of information technology resources,” which Cordeiro claims would be needed to find the emails.
Cordeiro said he sent or received about 3,100 emails in May and June, and that it would take the IT company about 5 minutes per email — about 258 hours — to search each email to determine which are related to Kirts or Dillard. He estimated the IT company would charge the town about $25,833 for this service, which The Wake Weekly would have to pay.
In addition, Cordeiro said the town’s contracted attorney, Ed Bartholomew, would need to review each email and redact any confidential information that can’t be released. State law prohibits the town from charging The Wake Weekly for the time it takes to make redactions, but Cordeiro argued that it could charge the newspaper for related time it took the attorney to download, open and save each email.
Cordeiro estimated the town could charge the newspaper for about 50 hours of the attorney’s time at around $200 per hour — which is in excess of the $125 per hour the attorney normally charges the town for his work.
However, on Monday, Bartholomew told The Wake Weekly that it may have to charge the paper for as many as 150 hours, and if the paper wanted the work to be expedited and completed within one month, he would charge $300 per hour — putting the cost for his service at $45,000.
The total estimated cost to The Wake Weekly would then be $70,833 for the emails. An additional, unspecified amount would be charged for copies of text messages, although Cordeiro said that charge should be much less.
‘ASTRONOMICAL AND UNREASONABLE’
The Wake Weekly showed the original $36,167 estimate to several state experts in media and government law and asked if the fee was supported by general statutes.
Most experts were skeptical that the town was justified in setting the price tag so high.
“That’s insane!” wrote Amanda Martin, a Raleigh-based attorney who regularly defends media organizations in such matters. “If you have sent a carefully worded public records request asking for emails, I can conceive of no circumstance in which you should get a $36,000 bill.”
Brooks Fuller, the director of the Sunshine Center of the North Carolina Open Government Coalition at Elon University, went further. He argued the town has no legal basis for passing on such costs to the paper and called the fee “astronomical and unreasonable.”
“I think that a court or a judge who’s confronted with this kind of request would balk at the notion that a request asking for a merely two months of emails between a couple of recipients or communicants ... would exceed a teacher’s salary in North Carolina,” Fuller said.
Fuller argued the town should not be able to pass along any of the attorney’s costs because his work would involve making redactions — which state law says the town must pay for. He also doubted the town’s claim that extensive use of information technology is needed to search for the emails.
“I have a very hard time believing that searching for, downloading and making available electronically 60 days worth of emails would take anything beyond basic information technology services,” Fuller said.
High fees undermine the goal of the public records law if they are prohibitively expensive, as they are in this case, Fuller said. State law explicitly says that public records, which include an official’s emails, “are the property of the people.”
Frayda Bluestein, a professor at the UNC School of Government who specializes in issues of public records, said state law prevents the town charging for employees’ time to find and make copies, because that’s already part of their jobs. It’s unclear if the law also prohibits the town passing on the costs for a third-party contractor to find and make copies, she said.
THE PRICE OF EMAILS
Cordeiro emphasized that he wants to be transparent and said he wished it were cheaper to make the emails available.
“Please know that my effort is not aimed at concealing any public information; it is simply aimed at compliance with state law and conservation of our small town’s resources,” Cordeiro said.
Towns and cities asking for special fees in connection to IT-heavy requests has been a controversial topic in the state. State law allows for such special fees, but says that the fees must be reasonable.
In 2014, a Middlesex woman paid a special $415 fee for about 1,000 copies of emails from the town’s mayor. Gov. Roy Cooper, who was the attorney general at the time, urged the town to reconsider charging such fees.
Cooper was also opposed to fees then-Gov. Pat McCrory charged for any public records request that took state employees longer than one hour to produce.
The town of Youngsville defended its fee by arguing that the town can’t afford to make the emails available otherwise. Cordeiro said he doesn’t want to “have the taxpayers of the town of Youngsville absorb the cost for the extensive use of information technology resources in the fulfillment of The Wake Weekly’s request.”