News: CJ Exclusives

CJ Sues to Obtain Dell Records

Commerce releases file hours after court filing

RALEIGH—Carolina Journal and the North Carolina Press Association filed a lawsuit Tuesday to force the state Department of Commerce to release all public records involved in a reported $242 million incentives package the state offered to Dell Computer Corp. of Austin, Texas.

Just a few hours later, Commerce officials announced that the file would be released late Tuesday for public review. Several news organizations have already filed reports summarizing the contents of some of the newly released documents.

The lawsuit, filed in Wake County Superior Court, alleged that the Commerce Department violated the N.C. Public Records Law by failing to release public records of negotiations that led to Dell’s decision to build a computer manufacturing plant in Winston-Salem. Secretary of Commerce James Fain and Linda Weiner, Commerce assistant secretary of communications and external affairs, were listed as defendants in the lawsuit.

The General Assembly, called into special session by Gov. Mike Easley, approved the incentives package Nov. 3. Afterward, many legislators complained that the Easley administration had failed to give them any information about the state’s negotiations with Dell and that they were rushed into a vote.

Richard Wagner, editor of Carolina Journal, originally requested the records Nov. 18 in an email he sent to Weiner. “In light of Dell’s acceptance of these incentives a week ago, Carolina Journal requests that all of these records be made available immediately. Please notify me by email, [email protected], when I may pick up the records from your department.”

In a memo to Wagner, Weiner refused to release the records because of “a few things that must happen before the information will be ready for your review.”

“First, all the information you have requested must be gathered. Second, Commerce must review the records and communicate with the company to confirm what information they may have provided to us that should be kept confidential under G.S. 132-1.1 and whether all information is appropriate for release in light of G.S. 132-6.

“I’m sure you can appreciate our need to adhere to the provisions of the general statutes regarding confidential information. Please keep in mind that this process is underway, and we will conclude it as quickly as possible. However, it will take time for each step to be completed.”

Wagner sent another email Dec. 2 to Weiner again requesting the information. “Certainly, by now, you’ve had ample time to prepare the documents. May I pick them up today or tomorrow?” he wrote.

Weiner again refused to release the records. She said the Commerce Department was still “working with Dell to get a final determination on what specific pieces of information that were shared with the department must remain confidential….” The department then would need more time to review the records to see where that information appeared, she said. In a third step to the process, Weiner said, the department must withhold the documents until competition among local communities had ended and an eventual winner for the plant’s site had been determined.

“As you can see, these are steps that take time and are steps that we take very seriously. Additionally, we must continue the work of the department while completing this process in as timely a fashion as possible,” she wrote.

A couple of weeks later, Dell chose Winston-Salem over other competitors in the Triad for its new plant. Still, the Commerce Department had not released any records until Tuesday’s post-lawsuit announcement.

Jennie Lambert, president of the NCPA and publisher of The Shelby Star, said Commerce officials’ two-month refusal to release the records was “ridiculous.” “They weren’t applying the law properly and now they want to let a company’s lawyers decide what is public record,” she said Tuesday before Commerce’s release of the file.

John Bussian, legislative counsel for the NCPA, filed the lawsuit. It contended that Commerce Department officials “appear to be withholding the records, not on the basis of any genuine issue as to the status of the documents as public records, but because they prefer not to disclose the records to the public at this time.”

The officials “will be able to violate the statute on a continuing basis without judicial review of their actions by withholding, delaying and frustrating access by the public to public records,” the lawsuit stated.

The lawsuit asked the court to force Commerce officials to release the documents. It also asked that the court order the officials to immediately release similar information on incentives packages the state may offer to future clients.

The state’s offer to Dell included cash and tax breaks to bring a reported 2,300 jobs to the Triad. Besides those jobs, an additional 5,000 to 6,000 jobs reportedly could be created from new suppliers and other computed-related industries, state officials said.

Fain told the News & Observer of Raleigh that Dell’s average salary per employee will be $28,000, with a range of $18,300 to $140,000. Some legislators and others questioned whether the state’s package was worth the huge price tag—an estimated $8,000 per job per year on average—to lure jobs in the pay range, the N&O reported.