Alamance –Burlington school board members are considering sweeping changes to an existing policy to begin charging at least $25 per hour for responding to public records requests.
Those charges would take effect immediately upon adoption, based on the school board’s discussion at its latest work session Tuesday afternoon.
Several board members appeared ready to adopt a policy revision to begin charging for staff time needed to respond to “voluminous” public records requests, which had been listed on their meeting agenda as a nonvoting item.
ABSS public information officer Les Atkins told the board that, so far this year, his office had received “about 52 [public records] requests,” adding, “I think I received four more today.”
Atkins told school board members Tuesday that the special service charges would help ABSS recoup costs for staff time and for software to convert emails – which are considered public records – to a PDF format “so it is viewable.”
At the same time, the PIO suggested that ABSS might purchase an electronic records management software, “Just FOIA,” which he estimated would cost about $7,000 per year – that he also said ABSS can’t afford to buy.
Atkins told school board members Tuesday afternoon that the new fees for responding to public records requests are needed to offset costs for furnishing the public records requests.
School board members appeared to be surprised to hear that ABSS has received that number of public records requests this year – and by the PIO’s description of the time involved to respond to public records request. Atkins said most of the records requests have been for documents related to the senior pranks at six ABSS high schools in late May that led to more than 80 seniors not being allowed to attend their commencement ceremonies, and the ongoing mold crisis that led the administration to delay the start of the new school year by two weeks.
Atkins told school board members Tuesday afternoon that the new fees for responding to public records requests are needed to offset costs for furnishing the requested public records.
During their discussion Tuesday, school board members neither questioned the new service charges; nor did they object to the dollar amounts that Atkins suggested: $15 per hour for “clerical time” and $25 per hour for “supervisory time,” though he didn’t outline what might constitute clerical or supervisory time.
Instead, one school board member, Chuck Marsh, even floated the idea of charging higher rates for staff time – anywhere from $25 to $75 per hour – than Atkins, the public information officer, had recommended.
One portion of newspaper’s public records request yielded 150,000 emails
The Alamance News on September 11 filed a public records request seeking to examine all correspondence related to the mold reported in ABSS facilities – to include text messages, emails, or internal staff memos – since June 10, 2023 sent to and from school board members, superintendent Dr. Dain Butler, several of his “cabinet members” (i.e., deputy superintendents and departmental directors), several employees in the ABSS facilities department, and one outside contractor.
Atkins responded on September 20 with a two-page letter, in which he stated that this newspaper’s request had resulted in more than 150,000 emails, which he said would require 416 hours of staff time to review.
“For any request, every page of every document or email (and attachments) must be carefully reviewed to determine if the record is responsive and meets the definition of ‘public record’ and to determine if it contains legally confidential or privileged information…that are confidential or privileged and exempt from disclosure,” Atkins wrote in his September 20 letter to the newspaper. [The records furnished to date by ABSS have included no attachments; nor did the newspaper request any attachments.]
Atkins elaborated in his missive to the newspaper that any records containing confidential information commingled with public information must be redacted prior to fulfilling the request – a process that he subsequently described as time-consuming during a protracted discussion with the school board Tuesday afternoon.
However, Atkins didn’t single out The Alamance News during his presentation about the proposed service charges for public records request.
Instead, he said that multiple public records requests had been filed not only by news media, but also by the University of North Carolina at Chapel Hill, Elon University, and others.
“We get requests for contracts,” the PIO explained. “Those are fairly simple – A lot of times it’s competing companies; for example, Xerox wants to know what Canon’s contract looks like so they would contact us and say I want to see because I may want to bid on it next year. We get a lot of requests from researchers like UNC Chapel Hill, Elon graduate students, who are doing studies on free lunch data or a demographic data – how many Hispanic students do you have; how many black students; how many mixed race students, that kind of demographic data. But the big one, pretty much, is the email request that really uses a lot of our technology resources.”
“It could take us quite a bit of time, in that could be an email that has a student record so sometimes I have to get on the phone with Mr. Mitchell and figure out is this indeed a record,” Atkins told the board Tuesday. He added that he thinks organizations and individuals who file public records requests tend to forget that school system’s administration is “a group of people working together to do what’s right for kids.”
School board attorney Adam Mitchell confirmed to the board during its work session that ABSS will not be allowed to charge for redactions. Mitchell said that other North Carolina public school systems are considering similar fees for fulfilling public records requests.
PIO: Painstaking process to separate confidential information from public records
A state law that governs provisions for copies of public records specifies” “Except as otherwise provided by law, no public agency shall charge a fee for an uncertified copy of a public record that exceeds the actual cost to the public agency of making the copy…‘Actual cost’ is limited to direct, chargeable costs related to reproduction of a public record as determined by generally accepted accounting principles and does not include costs that would have been incurred by the public agency if a request to reproduce a public record had not been made.”
The current ABSS policy states that the superintendent shall determine “the actual cost of providing copies of public records in various forms, such as paper or electronic media,” as well as the cost of a request for copies of public records when a special service charge is applicable. The policy also states that the superintendent shall develop procedures for charging fees but shall not charge any fees for separating confidential information commingled with public records.
All of the documents that ABSS has furnished in response to The Alamance News’ public records request of September 11 – as well as several earlier public records requests – have been in digital form.
The same provision within the state’s public records law also allows for a public agency to charge “a special service charge, which shall be reasonable and shall be based on the actual cost incurred for such extensive use of information technology resources” or the labor costs associated with furnishing public records.
However, in 2016, a group of news media organizations, which included The Alamance News, successfully sued then-Gov. Pat McCrory, claiming that his administration was intentionally denying access to public records and imposing unreasonable fees in connection with the requests. The lawsuit resulted in an out-of-court settlement, with McCrory’s administration agreeing to provide long-missing public records to one of the plaintiffs and to reimburse $250,000 in attorneys’ fees to all of the plaintiffs. (McCrory’s subsequent appeal was dismissed by the state Court of Appeals.)
Meanwhile, Butler said, “Four hours [of staff time] is a happy medium that we can absorb. Beyond that, these fees kick in.” Butler said other school systems set funds derived from special service charges for public records request aside to recoup costs for “the software involved” and other administrative overhead.
Atkins said one of the most time-consuming tasks in furnishing public records is converting emails to PDF formats. “Sometimes things are on different people’s hard drives and that sort of thing,” he told the board. “The biggie seems to be, obviously, the use of technology resources, and that’s when people ask for our emails. Currently, we do not have we have a very basic system [that allows responsive emails to be compiled through a keyword search.]”
Atkins told the board Tuesday that once the ABSS technology department retrieves documents from the ABSS email archive system, “They actually have to transfer them into a format that is viewable because obviously the email format is not viewable.”
The PIO said the ABSS technology officer, Dennis Frye, had told him that “he has had to bring in a separate computer just to manage turning the emails into PDFs.”
‘Taking time away from our jewel’
“I’m so sorry you guys are having to do all of this, because it’s taking time away from your duties,” school board member Donna Westbrooks responded. “You’re taking time away from our jewel, which is our children.”
School board member Chuck Marsh proposed Tuesday that ABSS charge $25 per hour for “the staffing rate” and at least 25 cents per copy – though he also suggested charging between $25 and $75 per hour for supervisory time related to public records request.
“I have a little bit of background in the media business,” said Marsh, who operates two radio stations based in Alamance County. “Sometimes what happens is these media companies, newspapers, television stations will do is send out a request and bombard a guy like Les…They’re just trying to pull a string to find out if there is anything, so they’ll bombard him with 350 hours of paperwork and they’re just pulling a string just to see if they can find something to write a story about. That happens a lot, and then you’re like, ‘Why did I waste that 350 hours? There’s been no story written about that or no TV coverage on that.’”
Atkins told the board that the public school systems in Wake, Forsyth, and Orange counties are considering similar special service fees for public records requests. “Public education is under the microscope across the country,” he said. “They are getting all sorts of requests, as it relates to books and curriculum and parents’ rights – all the different topics. So they are also considering similar fee structures and also considering going to the software or something similar.”
ABSS chief finance officer Kim McVey interjected that she thinks the potential fee for copies is “more than fair,” but added, “my concern is over the clerical and the supervisory [fees for staff time.]”
The public information officer said that, if and when ABSS were to purchase the Just FOIA software, public records would be furnished once the invoice had been paid.
“How long would it take to get the software up and running?” asked school board vice chairman Ryan Bowden.
“Probably 30 days,” the PIO estimated.
“There’s nothing saying we have to have the software, so maybe start charging and get the software down the road,” Bowden said.
Board chairman asks staff to develop potential fee structure
Referring to a potential fee structure, school board chairman Sandy Ellington-Graves asked Tuesday, “Would it be possible to ask the staff to bring us back some numbers that would protect our resources?”
“My intentions are to purchase this [software],” Butler told the board. “The fee structure should come from this board – as to what the fee structure should be.”
Mitchell responded, “Some districts don’t put a specific dollar amount in [their policies pertaining to public records requests].”
The school board’s attorney that state law explicitly provides that “no public agencies of shall charge a fee for an uncertified copy of the public record that exceeds the actual cost to the public agency.
“It’s limited to direct, chargeable costs related to the reproduction of a public record and determined by generally accepted accounting principles and does not include costs that would have been incurred if there wasn’t a request to make the copy,” Mitchell said.
McVey told the board that ABSS has an established rate for copies, and “it’s minimal.”
While several school board members – in particular, Marsh – seemed ready Tuesday afternoon to adopt an amended policy to begin charging fees for public records requests, the board’s attorney cautioned against it.
Historically, school board members have held two “readings” on new, proposed policies and revisions to existing ones. The ABSS policy that governs that function of the school board states that, when new policies are proposed, they will be introduced at one meeting – and time will be given for further consideration and public feedback – and voted upon at a subsequent meeting (i.e., second reading). For revisions of existing policies, a proposal is presented at a school board meeting (and included on the meeting agenda), but the board “will not take action on the proposal until a subsequent meeting,” according to that section within the ABSS “board operations” policies.
“I would not recommend doing that today,” Mitchell told school board members Tuesday, “but staff and I can certainly work with them can bring back something at your next meeting. You can either adopt it for first read, or if you feel like you need to waive second [reading], you can do that. We believe that it’s best practice to have a policy so that people know what it is we’re doing. We can continue to work together to send out these letters for voluminous requests and to process them in the way we just started doing it.”
“The point, really, is to encourage a more meaningful dialogue about what folks are actually look for,” Mitchell told the board. “Like Mr. Marsh said, if you’re looking for a string, tell us what the string is, and we’ll tell you if we have it. We can’t stop people from filing requests; we have to fulfill them, but if it’s going to take six months…that’s a legitimate special service charge that’s probably going to cause most people to stop and think and say, ‘hey, is there a more efficient way we can do that. That’s really the goal.”
The attorney also opined that ABSS could go ahead and start charging special service fees for public records requests – even without a policy in place because the law allows it.
“I would just recommend that at your next meeting you adopt either for first [reading] or if you waive for your final [reading]…but I don’t think you need anything different today to keep doing what we’ve recently been doing .”
Marsh insisted, “I think sometimes the media wastes time pulling at the string.”
School board members agreed by consensus to consider the revised policy, and possibly vote to adopt it, at their next meeting on October 23.
Read the newspaper’s editorial page views on the issue – ABSS hatches new scheme to hide public information from the public: https://alamancenews.com/abss-hatches-new-scheme-to-hide-public-information-from-the-public/
