NCDCR and Public Records Law, Part 3: My Response to Kevin Howell, General Counsel at North Carolina Department of Cultural Resources

Dear Mr. Howell,

I understand you are attempting to help and that will be duly noted in the article. (Note: I am unable to add this to the group project article at this point, so instead I have shared it in the blog.) However, it is incorrect to say that directing a citizen to a general website, inundated with hundreds of documents and an inoperable search function, is compliance with the law. I have spoken with with the Director of the national Student Press Law Center, Frank Lomonte, who agreed that, in his legal opinion, the law requires that the office in possession of the document provide that document directly when requested and that forcing a citizen to find it themselves is not compliant with the law.

Certainly this would not be an issue if the document in question was easily found on the website provided. In fact, I searched it for at least an hour after being directed to it on the phone, and briefly again when I was redirected there via email. However to an average citizen, “General Government” is not the obvious title to include Cultural Resources, and I’ve even worked for the North Carolina legislature and assumed it was under “Natural and Economic Resources” since DCR and DENR are in a recent transition of certain positions and projects. So when I thought that might be the case, I attempted to search that volume as a possibility, but you know as well as I that it would be difficult for someone unfamiliar with much of the particulars to find what the wanted in a several hundred page, multi-departmental document.

Now that you have directed me to the correct volume, which is helpful, the issue you have presented me with is that, as I said, this is a multi-departmental budget that is 1200 pages long, and I find it very hard to believe that the Department of Cultural Resources does not have its own, individual operating budget.

Regardless of anyone’s opinion of the law, it clearly states that “the public official in charge of an office having public records shall be the custodian thereof,” and that “agency…shall mean and include every public office…department…or other unit of government of the State…” Which means, regardless of the fact that the department’s budget is available combined with lots of other offices’ documents, the public official in charge of each office in the government is a “custodian”, who must be able to provide their individual public documents. The other thing Lomonte explained to me was that, if a public official provides the information through some larger office, it is legally compliant if the information requested is still received/found, however if it is not received, it is the legal responsibility of that public official to provide it, not the larger office or legal counsel.

I was not trying to cause anyone any trouble or make any accusations when I started this assignment, because I’ve worked in the North Carolina legislature and I love the state government as an institution. I fully expected the department’s budget to be a hefty document that I would have trouble getting through, but I assumed that at least obtaining it would be a simple request. However, there is a clear difference between the department itself having a large, complex budget and this massive consolidation of public documents.

As a student learning about FOIA at N.C. State, I was excited to see the process of obtaining public records for myself, but I also understood that Lori Oldham is probably a busy person who may have overlooked my reply that I still could not find what I was looking for. I was responding to her today to warn her that I had to report that she had not fully complied with the law yet because I am required, for my class, to report that in Lomonte’s legal opinion, this was not compliant and I assumed it was an unintentional mistake and was trying to give her another opportunity to respond. I was not interested in making that accusation or burning any bridges.

This response, however, was not what I expected. I was not disappointed that I had not gotten what I needed from her but I am disappointed that you believe what was provided is legally sufficient. Sending me a link to the correct volume would have satisfied me in the first place, but not with the assertion that any of this information is easy for the average citizen to find from the budget homepage. In fact, I find that somewhat insulting as a moderately intelligent and well-informed citizen.

The section I needed is 139 pages, from 1016 to 1155, and that is what the office is required to provide.

Thank you so much for your time. I hope you find my information helpful as well.

Sincerely,

Emily Ellis

Editorial Note: This was sent at 8:30 p.m., April 28th, 2015. 

This email may be harsher than I intended, but I stand by it. However, if I am wrong in any of this, please let me know. I am not a lawyer and I was simply writing based on my limited government experience, my reading of the General Statute and Frank LoMonte’s statements to me and my class on April 20th. I felt that Howell’s response was incorrect and I am posting these things here because I want to know what other people think about this issue and about how he should have responded, but also how I could have responded better. I know I have a lot to learn. I was not “out to get” the government or anything like that, but I thought the correspondence and the behavior towards a citizen trying to obtain information, after trying to give the office another opportunity to comply with the law before writing about it, was disappointing and something that North Carolina citizens should see.

NCDCR and Public Records Law, Part 2: Email Correspondence with various employees of the Department of Cultural Resources

This is the email correspondence I have had up until now with employees of the Department of Cultural Resources regarding a request for a copy of NCDCR’s annual operating budget. If you’re interested, pay particular attention to the last email, from their General Counsel.

This is the first email, from me to Melody Chiang, after initially calling the office and having already looked at OSBM website to try finding the budget myself.

This is the second email, to me from Lori Oldham, asking me to explain what else I needed. You can also see Melody Chiang’s email to her, asking what she was legally obligated to give me.

These are the third and fourth emails. The third is from me to Lori Oldham, explaining what information I need. The fourth is from Oldham to me, directing me to the same website I had initially looked at, the Office of State Budget and Management.

These are the fifth and sixth emails. The fifth is from me to Oldham, explaining that I had already tried to locate the correct document on that website and had problems and asking if she could point me in the right direction. The sixth email, eight days later, is me to Oldham again, explaining that I will have to say she has not fully complied with the law if I do not hear anything back.

On April 20th, after sending the first email in that image, I was advised by Frank LoMonte, director of the Student Press Law Center, that the information provided to me so far was not full compliance with the law and that the state is required to provide the specific document, not force the citizen to find the document themselves. I explained as much, and received this response from their lawyer:

This is the seventh email, from Kevin Howell to me, asserting that the law had been complied with already but providing a link to the 1200 page, multi-departmental budget for the group “General Government.”

The “copy” of the budget finally provided can be found on pages 1016-1155 of this document.

My response to Mr. Howell will be published in a separate post.