What began as a request to A-B Tech for executive-level communications about a quarter-cent sales tax increase approved in 2011, which will benefit the school until 2029, turned into a different sort of investigation after the college took more than two months to reveal it no longer had any such communications related to the tax hike.
State law requires publicly funded institutions to keep records based on a retention schedule that prescribes how long documents, communications and other records should be kept and, if necessary, archived internally or externally. Based on the state’s retention schedule, it appears the communications Xpress sought from A-B Tech should be kept for five years and then archived for posterity.
Open records laws, also known as “sunshine laws,” exist to ensure government organizations are held accountable to taxpayers. North Carolina’s director of archives and records, Sarah Koonts, says it’s about transparency: “Public colleges and universities aren’t much different than any other public entity creating public records for the state of North Carolina. … The idea is that someone’s not creating and destroying records without anyone knowing about it.”
On June 29, Xpress sent an open records request to A-B Tech asking for correspondence among former President Hank Dunn and other administrators surrounding the school’s push for a quarter-cent sales tax in 2011. The referendum was approved by fewer than 500 votes.
Despite state laws that prohibit governmental entities from asking the purpose of a public records inquiry, A-B Tech responded, via email: “May I ask why you’re revisiting this at this point? It was pretty thoroughly covered at the time and it’s now five years later.”
This response, and other emails with A-B Tech, led Xpress to question whether the community college was adhering to best practices in processing open records requests and whether it was violating state mandates.
Seventy-eight days after the June 29 request was filed, and after multiple emails asking the status of the request, Xpress received the following email from A-B Tech: “We have conducted a thorough search of electronic and paper archives, but there are no remaining records related to the quarter-cent sales tax referendum in 2011.”
Amanda Martin, general counsel to the North Carolina Press Association, at that point advised that it appeared A-B Tech was in violation of the state’s general statute governing open records requests.
One request, four schools
The difficulties and delay that characterized the June 29 request to A-B Tech led Xpress to become interested in how other public colleges process inquires. On Aug. 19, Xpress sent identical open records requests to four schools: A-B Tech, UNC Asheville, Haywood Community College and Blue Ridge Community College. We asked to see all communications, from Jan. 1 through March 31, 2016, among the colleges’ presidents and top administrators concerning the Connect NC bond referendum, which was approved by voters in March and disperses $3.1 billion to universities and community colleges across the Tar Heel State.
Xpress made the requests to learn how school leadership communicated with each other regarding the proposed bond in the period leading up to the referendum. We also wanted to compare how each school would respond to, and fulfill, the same request. This article examines the second concern.
The four schools’ responses to our request differed significantly. Those differences highlight some of the questions open records laws leave open to interpretation: how long agencies have to fulfill an open records request, how often they should communicate with the person making the request during the process, whether a request can be put on hold and what consequences can result from an institution’s failure to maintain records for the statutory period.
As a result of this experiment, Xpress learned A-B Tech was storing emails in a manner that makes thorough and efficient searching of archived communications impractical and prohibitively time-consuming. A-B Tech has pledged to immediately address this issue, host a state archives training session and take other steps to address inefficiencies in processing requests.
Hurry up and wait
Upon submitting the Aug. 19 request, Xpress learned Kerri Glover, A-B Tech’s executive director of community relations and marketing, was on emergency medical leave from late July to early September.
While Glover was on leave, A-B Tech did not have a backup plan that would have allowed the school to fulfill the request in her absence.
Over the course of this investigation, the three other schools indicated that they have mechanisms to keep requests moving forward should key personnel be absent.
A-B Tech was also the only school that said it would charge Xpress for reproducing documents related to the request.
Meantime, two colleges complied with Xpress‘ Aug. 19 request in under two weeks.
BRCC was the first to respond, sending 393 pages of documents electronically on Aug. 22, three days after receipt of the request. Lee Anna Haney, spokesperson for BRCC, told Xpress, via email, about the school’s record retention methodology: “Email is archived using a cloud-based service. The college retains all emails for two years; however, should the content in the email need to be maintained for longer than two years, college policy requires employees to transfer the email to a different medium in order to store the document for the appropriate time.”
The second school to complete its request was HCC, sending 897 pages electronically on Sept. 1, 13 days after the request was filed.
Aaron Mabry, HCC’s director of marketing and communications, explained, via email, the school’s retention policy: “For all records that are open to the public, the business office follows the North Carolina Community College System record retention and disposition schedule. The NCCCS office has strongly encouraged all community college institutions across the state to develop a policy for the archiving of emails and has left it to the discretion of each institution on how they will do so.”
On Sept. 22, 34 days after the requests were filed, Xpress sent emails to UNCA and A-B Tech alerting the two schools that, while the paper was still interested in having the Aug. 19 request fulfilled, we had undertaken the project, in part, to determine how schools respond to open records requests.
On Sept. 28, UNCA provided Xpress with approximately 300 pages of documents in hard copy form, 40 days after the request was filed.
On Sept. 29, A-B Tech provided Xpress with approximately 400 pages of documents in hard copy form 41 days after the request was filed.
Carrots and sticks
The general statute governing open records does not specify the amount of time in which organizations are required to fulfill a request but does state: “Every custodian of public records shall permit any record in the custodian’s custody to be inspected and examined at reasonable times and under reasonable supervision by any person, and shall, as promptly as possible, furnish copies thereof upon payment of any fees as may be prescribed by law.”
So what does “as promptly as possible” mean? Many media outlets and transparency advocates have interpreted the statute to mean that an agency must act in the spirit of the phrasing of the law. In 2015, a media coalition filed a lawsuit seeking greater clarity in Wake County Superior Court. The suit alleges that Gov. Pat McCrory’s office avoids or circumvents public records law and discourages or intimidates public record requestors. The plaintiffs contend that the phrasing “as promptly as possible” is being abused.
Martin says the directive should be applied in a manner that keeps a request moving forward. “The institution is the public agency that has the response requirement,” she says. “The law does not contemplate that the public will be held hostage to vacation, medical leave, anything of a particular employee. Rather, the agency has an obligation under the statute.”
Martin says it does not seem logical to suspend requests should a member of the staff be on leave or absent for a period of time. “Let’s put it this way: If the person who cuts checks were gone from the accounting department they would not simply say, ‘Well, we can’t pay our bills because that person is gone.’”
In regard to A-B Tech taking 78 days to come back empty-handed in response to Xpress’ June 29 request Martin says, “That’s utterly inappropriate. First of all, given what the response was going to be, why didn’t they send it that afternoon? That’s clearly not as promptly as possible.
“My belief is that any government agency operates best when it is transparent,” adds Martin. “Yes, that is maybe a little bit more time-consuming for organizations, but it leads to public understanding of issues, and that’s what is intended by our legislature when they passed our open government laws.”
While the law seeks to incentivize public-sector behavior that is both transparent and efficient, few if any ramifications follow instances when it is neither. “There are no automatic consequences when a public agency violates the law. The law is dependent upon the public and the media to hold accountable the public agencies and officials,” notes Martin. “It’s a balance of what the legislature thinks will lead to best results in terms of compliance. But it seems to me that it would be helpful if we had some more consequence.”
Koonts also emphasizes the importance of record retention and says transparency serves the purpose of making sure people are not creating and destroying records willy-nilly. “Agencies can always keep things longer, that’s never a problem,” she advises.
And while Koonts is a champion of record posterity, she notes her department has no means of enforcement. “There is no stick that we have. Archives has no punishment that we can inflict. It doesn’t work that way,” she says. “There are misdemeanor punishments included in public records that account for what I would call ‘malfeasance of record keeping,’ and that’s usually characterized at the end of a term, like if I go home and run off with my public records.”
As for documents surrounding A-B Tech’s push for a quarter-cent sales tax five years ago, Koonts says those records should be available. “I think it’s a fair statement to say that recent of activity, I would expect there to be some evidence of it,” she says. “I think if it’s a long-term project you would hope records would be retained, or seen as of value, while that program is in place.
“We would hope our records custodians have a process in place for appraisal,” she continues. “If that authority is delegated to them, then they can decide what is historical and what’s not. We would hope there would be some sort of orderly decision-making process, or they would ask us to give our opinion on the long-term value of records.”
Also, Koonts says it never hurts to ask. “I would offer that we have lots and lots of services, including records analysts stationed in Asheville just for that reason,” she says. “If anyone has issues with what to keep and how long to keep it, that’s exactly what we’re here for.”
Challenges and opportunities
“The [open records request] process is never a burden. It’s a public good. I really, truly believe that,” says Luke Bukoski during an in-person interview with Xpress. UNCA’s director of marketing and communications sees the process as an opportunity for the school to showcase transparency. “The notion of journalism as a watchdog for democracy and public institutions is something that’s important to the culture of a liberal arts institution.”
In regard to taking 40 days to fulfill Xpress’ request Bukoski says, “The biggest lesson learned is I want to make sure that I’m getting a better sense of true hopes for the fulfillment of the request in terms of the timeline. Not that anything got put off.” Bukoski adds that for requests such as this one, there can be inherent bottlenecking while the school’s lawyer makes sure student, personnel and other protected information is not released.
And in regard to how the media can make the process easier, Bukoski says specificity in the request, and some flexibility, is always helpful. “If I can get you quick turnaround information that gets to the heart of your matter in a few days, and then have a bit more time to get the peripheral information, that’s helpful,” he notes.
Keeping the process going is important to Bukoski, who says that if he’s absent, other staff members take over the processing of requests. “I understand you have deadlines and it’s a crimp in your schedule if we’re not able to do that,” he says.
Xpress also asked what the timetable would look like for returning information on a search that did not come up with any results. “That process can happen relatively quickly because the most time-intensive part of the process is when a lot is returned and then going through it,” he says. “And at that time, this is where the relationship piece comes in, because then I can see if there is something else we can help you find instead of just saying, ‘Sorry, there’s no records.’”
Recommendations and requirements
“We are a state entity that gets state, federal and local funding, so we fully believe in transparency. Our policy on responding to requests [is to do so] as soon as possible in compliance with the law,” says Glover. “As soon as possible has to fall within the college business we have to conduct. So if you tell us you have a deadline next week, we’re going to try our best to honor that.”
Xpress asked Glover a series of questions about how A-B Tech’s previous actions coincide with that belief during an in-person interview.
When asked why communications from Dunn and others have not been archived in accordance with the state retention schedule, she says A-B Tech’s lawyers interpreted some of those as recommendations and not requirements. “It definitely has raised some questions. I don’t disagree with your characterization [that those records should be archived]. I wasn’t here in 2011 and don’t know what the thinking was then,” she says. “I think, as a result of this, we are going to be looking at everything that’s recommended in the retention schedule with our attorneys.
“We are going to go through the entire retention schedule and make sure we are in compliance.”
To that end, Glover says she and others are attending a conference on state records retention and then will be hosting representatives from the WNC Office of State Archives to discuss best practices for archiving. “I do think going through this process, because of some of the questions it raised, was helpful,” she says.
In regard to why the request could not be handed off to the school’s information technology department, Xpress learned A-B Tech doesn’t keep all of its communications on a central data server. In many cases, the only source of communications records are an individual employee’s computer hard drive. “It might be some things were retained and some weren’t. I move things to a folder that is on my hard drive. The way email is set up there are live folders and archive folders,” she says. “We have to have server space for over 10,000 students, over 1,000 employees; and server space is at a premium, and people are encouraged to move emails to archive folders on the hard drive to relieve pressure on the server.”
Xpress followed up by asking Glover to confirm that archived emails aren’t stored on a central server for posterity and therefore cannot be searched by IT staff members. Glover agreed, noting, “And I think that is the problem.
“And that is something we may have to revisit because we might have to leave [emails] where they can be searched.”
When asked when A-B Tech would look at revisiting the issue, Glover responded, “Immediately.”
A-B Tech’s lack of staff backup to facilitate the open records request process, as in the case of Glover’s absence, is also likely to be addressed. “I like to operate on the premise that anyone could be hit by a bus, and if you are, who would do your job? Obviously we were not set up in this instance for that,” Glover says. “If all we had to do was have IT search, then we would have been OK. Because I physically had to go through my files and turn them over to the lawyers, I had to be there. That’s the problem. It has pointed out a problem to us that we will ensure does not happen in the future.”
Glover says that her emergency medical leave, in tandem with the school not utilizing a central server for archived emails, was the main factor in the delay in fulfilling Xpress’ request.
“We want to be responsive and work with the media,” says Glover. “So I would hope in the future, this process has helped us to iron out some bugs that we’ve discovered.”
Ultimately, A-B Tech did not charge Xpress for the documents provided as it originally said it would.
Editor’s note: The print version of this story uses the terms “Freedom of Information Act,” or “FOIA,” interchangeably with “open records request.” Xpress has since determined that FOIA should only be used when referring to federal-level requests. This version of the story has been edited to reflect that.