Public records requests to NC government, universities drag on for months

jneff@newsobserver.comMarch 15, 2014 

Flanked by Cabinet members, Gov. Pat McCrory, center, holds a press conference at the Executive Mansion in Raleigh .

COREY LOWENSTEIN — clowenst@newsobserver.com Buy Photo

  • Sunshine Week

    This is Sunshine Week, when advocates of open government celebrate the value of freedom-of-information laws. Watch for more coverage through Wednesday.

  • Where records helped

    Public records were instrumental in these N&O stories during the past year:

    Lucrative no-bid contracts: The News & Observer obtained copies of high-dollar contracts awarded by Aldona Wos, secretary of heath and human services. Wos awarded one worth $312,000 a year to former State Auditor Les Merritt and another worth $310,000 to Joe Hauck, a vice president from the company owned by Wos’ husband.

    Regulations not followed: State policy requires public officials to file memos justifying sole-source and personal-services contracts, such as those awarded to Merritt and Hauck. But in those cases and at least four others, DHHS attorney Kevin Howell wrote in response to a public records request: “No justification memorandum was located by agency personnel.”

    Legal settlements: Public records requests revealed the amounts of settlement reached with Floyd Brown, the mentally disabled man jailed in a psychiatric hospital for 14 years based on a confession that his lawyers said was fabricated by an SBI agent and two county sheriff’s deputies. Anson County and its insurers paid $1.475 million, while the SBI and its insurers paid $7.85 million. The SBI and its insurers also paid $4.625 million to Greg Taylor, a Wake County man wrongfully imprisoned for 17 years before a three-judge panel declared him innocent.

    Pay raises: Pay records routinely acquired by The News & Observer show that the manager of the troubled Medicaid claims payment system received a 25 percent raise in January. Angie Sligh had also made $237,500 in unauthorized overtime over the previous four years.

    Failed contracts: Records showed the Department of Revenue amicably ended a software contract with a vendor despite earlier notifying the company that it had failed to meet the contract’s terms. The department agreed to a final payment of $5 million and promised not to say anything disparaging about the company, CGI Technologies and Solutions.

    Tax breaks: Email showed how state Senate President Pro Tem Phil Berger protected a tax break worth $400,000 to Alex Lee Inc., the Hickory-based company that owns Lowes Foods.

    Questionable police conduct: Public records showed how police in the town of Hamlet had seized at least 25 vehicles in a series of questionable and off-the-books transactions. One detective ended up with a confiscated vehicle, while the police chief failed to account for $23,000 in revenue from selling vehicles.

    Academic trouble: Correspondence showed a cozy relationship between UNC’s Academic Support Program for Student Athletes and Julius Nyang’oro, the professor at the center of UNC’s academic and athletic scandal. Correspondence also revealed the NCAA’s unwillingness to investigate and the efforts by faculty leader Jan Boxill to water down a faculty report.

    Jacking up pensions: Pension data from the State Treasurer revealed how community college presidents were structuring their compensation to jack up their annual pensions by as much as $52,000. The records also showed high salaries for housing authority managers in Raleigh and Greensboro.

    Excessive use of force by police: The News & Observer requested 2012 reports on the use of force by Durham police officers. The reports showed that the department reviewed 136 incidents and found five cases where officers violated policy by using excessive force.

    Comp time: Pay sheets showed that Raleigh Housing Authority Director Steve Beam had been using more than 20 comp days a year, some of it accrued by logging additional hours during a typical workweek. Coupled with vacation and sick leave, Beam had been taking up to 11 weeks off per year. He has a side business as a card-trick magician.

    Fancy meals: Expense records showed the Raleigh Housing Authority treated its board to annual Christmas dinners at Raleigh’s swanky Second Empire restaurant that included wine, beer and bourbon. The most recent bill came to $3,082, including tax and tip.

  • Rules don’t apply to all?

    Last October, DHHS lawyer Kevin Howell sought to explain why Secretary Aldona Wos did not produce memos justifying sole-source and personal-services contracts. (The agency’s purchasing manual does not provide an exception.)

    “The intent of the justification memorandum is for the divisions within DHHS to justify the need for personal services contracts to the Office of the Secretary. Since these personal service contracts were for the Office of the Secretary, no such justification was needed.”

North Carolina law is clear on when public officials should provide citizens access to public records: “as promptly as possible.”

But reporters at The News & Observer and other news outlets sometimes wait six months or more for requests about simple things such as which professor taught a UNC class in which room, or more complicated requests for records at the heart of the state’s $14 billion Medicaid program or the botched rollout of the state’s food stamp program, NC FAST.

The delays mean the public lacks timely insight into how public dollars are being spent and how public servants are fulfilling their duties.

Soon after taking office, Gov. Pat McCrory declared Medicaid “broken” and promised to reform the program. He hired an experienced Medicaid manager, Carol Steckel, as Medicaid director.

The governor made it clear that he wanted to move North Carolina’s Medicaid program to a managed care model, under which private insurance companies would manage parts or all of the program.

When Steckel abruptly resigned in September, The News & Observer requested access to Steckel’s work-related emails. WRAL separately requested all of Steckel’s emails that mentioned managed care.

Six months later, the department has yet to produce a single email.

There is no dispute that emails sent in the course of public business are public records. In fact, there’s a standard template for state Department of Health and Human Services emails: “Email correspondence to and from this address is subject to the North Carolina Public Records Law and may be disclosed to third parties by an authorized State official.”

Kevin Howell, a lawyer and point man for all records requests at DHHS, said the department is responding as quickly as possible. He cited two reasons for the delay: The requests are in a queue behind other requests, and staffers must read each email to make sure no confidential information is released.

“We do want to turn requests around as promptly as possible,” Howell said. “All records have to be reviewed individually to protect confidentiality.”

But others who have done Howell’s job said records requests should be filled in days or weeks, not six months or more.

“Good Lord no, that’s ridiculous,” said Debbie Crane, who worked for 19 years as a public information officer, the last eight at DHHS. “Email is a pretty easy request to deal with.”

When providing email for a public records request, state employees typically complained that there was confidential information mixed in their emails.

“You shouldn’t be putting a patient’s name or Social Security number in an email,” Crane said.

It does take time, Crane said. Somebody does have to read the emails, but that should take a matter of weeks, not months.

Crane said the longest lag time during her tenure was six weeks. Crane was fired from her job at DHHS in 2008 amid the fallout of a News & Observer series critical of mental health reforms under the administration of former Gov. Mike Easley.

More at DHHS

In August, WRAL reporter Tyler Dukes requested emails concerning NC FAST, a new software program intended to speed the handling of food stamps and other benefits. The program has been troubled from the outset. A backlog of applications grew as many county workers struggled with the new system.

The backlog grew so severe that the U.S. Department of Agriculture threatened to cut off $88 million a year in federal money that helps run the system.

Dukes requested the emails of NC FAST Director Anthony Vellucci. The department has not provided any email in seven months while the problems in the program have played out at legislative hearings and in the media.

“Responding in a timely way to the requests is crucial to holding this agency accountable,” Dukes said. “It’s difficult to do when we are waiting so long for this.”

Carolina Public Press, a news site based in Asheville, looked into DHHS’ investigation of Femcare, a local abortion clinic. DHHS suspended Femcare’s license two days after McCrory signed a controversial abortion bill into law.

The reporter, Jon Elliston, first requested the records Aug. 1. He said he spent several weeks negotiating the scope and cost of the request. He received some records Feb. 8 and the remainder a couple of weeks later.

“We did try to narrow the requests, and we had a protracted set of negotiations,” Elliston said. “Still, it did take a long time.”

There are 24 positions in the Office of Communications at DHHS, according to an Oct. 24 memo. One person, Howell, facilitates public records requests. Another person arranges interviews for reporters with agency personnel. The other positions are dedicated to public relations and marketing.

Withholding an audit

In September, officials at Elizabeth City State University launched an internal probe of long-distance international phone calling after The News & Observer disclosed an unusual pattern involving thousands of calls to Senegal.

The university refused to say who was leading that review, even though it is public record. In December, The N&O sought records about the review itself, including any memos or other correspondence.

A spokeswoman for the university, Kesha Williams, responded that the investigation “was not complete.” The newspaper requested any records that had been created. The university provided none.

One of the paper’s readers, John H. Hall Jr. of Nags Head, was also curious. He wrote several letters, with no result, and finally was directed to someone in the university’s legal department.

The week of Feb. 10, the university gave Hall a copy of an internal audit addressed to interim Chancellor Charles Becton. The audit detailed $140,000 of misspent state tax dollars, and a separate one showed that $6,000 in personal long-distance calls were made by an unidentified ECSU employee.

Hall, a 79-year-old retiree, mailed the audit to The News & Observer with a handwritten note that said he had received the report “after some effort.”

On March 5, the newspaper renewed its request for memos and correspondence about ECSU’s internal review. The response that day from Williams was succinct: “I received your request.”

On March 6, the paper sought the information again. The response was the same. That continued for days, until on March 10, the university sent the internal review by fax.

The internal review was dated Nov. 20.

Becton said he had not wanted the report released until it was “final.” It is well-settled law in North Carolina that draft reports and other working papers of government officials are public records that must be provided as promptly as possible.

Becton added in the interview that he had hoped to produce the document simultaneously with an ongoing state audit. That state audit was released Thursday.

Becton, a former judge on the state Court of Appeals, said he did not have any additional explanation for why the information was withheld for so long.

A nine-month wait

The News & Observer has requested many documents in reporting on the academic fraud and athletics scandal at the University of North Carolina at Chapel Hill. The school has provided public records promptly in some cases, but other requests have taken nearly a year to fill. In some cases, media outlets had to sue to get records. The N&O has filed one lawsuit and been part of a second in pursuit of other records.

On Nov. 11, the newspaper requested all university correspondence with the NCAA from the period of Aug. 1 through Nov. 9. Despite repeated requests, the university has not provided any correspondence.

On June 6, 2013, the newspaper requested basic information that is public for any course: the assigned classroom, class time and instructor of two classes in the African and Afro-American Studies department. Emails obtained through a separate public records request suggested those classes in 2005 and 2010 could be among those that were advertised as lecture courses but ended up as classes that didn’t meet and required only a paper.

Spokeswoman Karen Moon responded that neither course was contained in university investigative reports listing bogus classes. She provided no further information.

The News & Observer repeated the request, asking for the information regardless of whether the classes were referred to in any reports. Despite at least three requests in 2014, the university had not provided the information until Friday afternoon, more than nine months after the original request.

On Friday afternoon, Moon released information on the two professors and said the university was “unable to locate a class time or location for these courses.”

In the past, the university has blamed a personnel shortage for being slow with records requests.

UNC Board of Governors Chairman Peter Hans has said he is troubled by the lengthy process. He expressed concerns about other universities as well and said he is working on a proposal to bring before the board that would set standards for acknowledging the requests and providing an estimate for how long it would take to produce them.

“My sense is the legal process (for producing information) is more difficult than it appears, but it shouldn’t be this hard with the long gaps between requests and responses, and the uneven nature of responses from (UNC) institutions,” Hans said. Staff writers J. Andrew Curliss and Dan Kane contributed.

Neff: 919-829-4516

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