NC town wants people to pay by the hour if records requests take too long. Is it legal?

Huntersville leaders this week approved a new fee for public records requests under a provision of state law that’s been challenged in court.

The town’s Board of Commissioners voted unanimously to institute an $18-an-hour fee for time spent on records requests that take staff more than four hours to fulfill. The town said the change was necessary because of an uptick in records requests, especially complicated ones.

North Carolina allows people to request a swath of records from state and local governments and agencies, and one expert says it’s unclear whether Huntersville’s new policy would hold up in court.

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“There is little case law” on how the provision in state law Huntersville cited to support its new policy “should be interpreted,” said attorney Mike Tadych, who works with the North Carolina Press Association. But, he noted, there have been some legal challenges to fees for records in the state that have drawn criticism from media organizations and open government advocates.

“I cannot say that these policies violate the law as the state of the law is unclear,” he said of Huntersville’s move.

How much will Huntersville fee cost?

Under the measure passed Monday by commissioners, people requesting records from the town “requiring extensive use of information technology and/or extensive clerical or supervisory staff time” will be charged a fee of $18 an hour “for time expended on the request” over 4 hours.

A 50% deposit will be required for requests expected to cost more than $50. A fee estimate will be provided to those who file requests estimated to cost more than $25, with those people given a chance to modify their request.

Town staff estimated the fee will apply to about 15% of the records requests they receive.

Why is Huntersville adding fee for records?

Huntersville averaged 88 public records requests per year over the last five years, town staff said at Monday’s commission meeting. They also reported a 23% increase in requests at this point in the year compared to the same time in 2023, particularly “broad, complex” requests they said are driving up the town’s response time to requests.

“That’s a huge burden on our staff,” said Mayor Christy Clark, noting Huntersville has one town clerk and one town attorney to handle requests.

Staff said they believe the fee is legal under the state’s public record laws, and they looked at other North Carolina towns and counties to see what they’re doing as they developed the policy.

“We’re protecting the taxpayer’s money,” Commissioner Nick Walsh said.

Commissioner Alisia Bergsman voted for the measure but urged caution during a discussion of the measure.

“We want to be very careful because public records are people’s records,” she said.

Are fees for records legal?

North Carolina law says public records must be “free or at minimal cost unless otherwise specifically provided by law” to anyone seeking them. The statute defines “minimal cost” as “the actual cost of reproducing the public record or public information.”

But Huntersville cited another provision of the state’s public records law at Monday’s meeting. That statute says agencies may implement “a special service charge” for requests requiring “extensive” information technology, clerical or supervisory assistance, or if the record is requested in a medium that requires “a greater use of information technology resources.”

The statute says the charge must be “reasonable” and “based on the actual cost incurred” to fulfill the request.

Former Gov. Pat McCrory’s administration also “attempted to impose a four hour rule” under the same provision, Tadych noted, something the NCPA fought alongside a coalition of news organizations.

That coalition filed a lawsuit against the McCrory administration in 2015, citing growing frustration over obstacles to obtaining public records in North Carolina, including allegedly unjustified fees for retrieving, copying and inspecting records. The suit was settled in 2017 when Gov. Roy Cooper took office — a settlement that included an agreement “they wouldn’t impose the hard and fast rule” on fees, Tadych said.

“More and more North Carolina agencies” are proposing “prohibitive fees to discourage” requests under the same provision Huntersville cited, the Reporters Committee for Freedom of the Press says in its analysis of the state’s records laws.

That guide, written by Tadych and other First Amendment experts in the state, noted a trial court sided with the former mayor of Summerfield in Guilford County when she sued over a “special service charge.”

“There has been no guidance from the appellate courts regarding special service charges,” the guide says.

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