"I think the law in and of itself is fairly well constructed, but how it is carried out from place to place can vary from time to time," said Fred Clasen-Kelly, a reporter for the Charlotte Observer.
Clasen-Kelly ran into a problem with the North Carolina Public Records law recently while he was working on an article about the 40th anniversary of Title IX. He requested from the 10 largest counties in North Carolina numbers relating to female participation in athletics and if they followed the law in terms of setting up information for parents.
“We got information from two counties pretty quickly, but that is it,” Clasen-Kelly said. “As a reporter, I am not quite sure how I can tackle it because I can’t have the paper call an attorney every single story I do. I am not sure the law actually empowers us to take action.”
When someone asks for a public record, there is often a vetting process that needs to happen before the information can be given out.
Another reason information is slow is because of depleted personnel and IT resources at the government agencies getting the requests, said Fleming Bell, professor of public law and government in the UNC School of Government.
“One of the great frustrations as a reporter,” Clasen-Kelly said, “is that you have editors that want information now, and you get responses saying its going to be a long time because lawyers have to vet the information. The only thing you can do is file a lawsuit, but even if you win, you don’t get the information, but just lawyer fees. You don’t know what information they are vetting and if you should be fighting for it.”
Recently, there have been statues created to protect records that have personnel information in them. And that’s a legitimate reason for enforcing a vetting process. It also explains why it can take time to fulfill a request.
“The definition of a personnel record law is very broad,” Bell said. “And if you give out anything you weren’t supposed to, it is a Class 1 misdemeanor. What you may be encountering is a resistance that is partly born by a fear that they may give you something that the law really does cover and they have to go to court.”
The law is causing many people to find loopholes in providing information. Clasen-Kelly’s paper has experienced a sheriff who said he was going to find a way around the rules by not writing down when he fires folks.
One of the unattended ironies of the North Carolina public record laws is driving people to forms of communication that are not covered in the laws, Stevens said.
“What really needs to happen in order to make a 21st century law is that we need to combine the many statutes we have about public records and do a thoughtful overhaul,” McCormick said.
— by Rebecca Smith ’12