News: CJ Exclusives

Crane Speech a Plea for N.C. Open Government

Fired spokeswoman says public-record law changes need to be made

Editor’s Note: Carolina Journal, in support of open government, is printing the full text of a speech given last week by Debbie Crane, former spokeswoman for the N.C. Department of Health and Human Services (DHHS), at the North Carolina Open Government Coalition luncheon at Elon University. Crane was fired by Gov. Mike Easley on March 4. Crane gave Carolina Journal permission to publish the transcript of her speech. It appears below:

I have to say three weeks ago, I wouldn’t have imagined I would be here today. I figured I would be in my office in Raleigh, doing the people’s business. But, as I guess y’all have heard, my situation has changed. Let me thank you personally for this opportunity to get out of my house. One of the things I loved about my job was daily contact with reporters, so I’m pleased to see so many of you here in the room. Today, I’m getting my reporter fix.

Also, I’ve got to admit it has been a little weird writing a speech for me. I’ve written lots of speeches over the past years, but I’ve not written a speech for me to deliver since high school. I’ve spent much of my time in government putting stuff down on paper in someone else’s voice. Writing this speech has been kind of liberating, because I know what I want to say and how I want to say it. I don’t have to keep saying to myself, “Would Dr. Bruton [Dr. David Bruton, former DHHS secretary] say this?” … “Would Carmen [Hooker Odom, former DHHS secretary] say this?” … “Would Dempsey [Benton, current head of DHHS] say this?” This is me talking.

When I came to government almost 19 years ago, I went to work for a lovely man named Jim Shepherd. He was everything a reporter, or a citizen, would want in a public information officer. He believed that we were doing the public’s business and the public, often working through a reporter, deserved every scrap of paper … every idea belonged to the people. He was passionate about the subject. He gave me two pieces of advice the day I started work, which was, by the way, July 3, 1989 — the first was just about everything you produce in government is public record, and the second was if [News and Observer investigative reporter] Pat Stith comes calling, get scared, get very scared. The first was great advice. The second was true in its own way, but I have to tell you Pat is the person I would most like to be if I had my career to do over.

I had met Jim when I was a reporter, coming to him for help in doing stories about the environment. I thought that what he did sounded like the ideal job — helping reporters and the public get information. I had had my share of problems as a reporter with public records and open meetings.

I knew firsthand as a reporter that there were people like Jim in government, who worked daily to keep things public. But, there were also people who worked just as diligently to keep things private.

In one of my earlier incarnations, I was a radio reporter in Columbus County. The radio station I worked for didn’t have the best of equipment. I used an old, balky recorder that dated from the late ‘70s. It had to “warm up” before it would record, so once you got it in record mode … you would hit the pause button rather than turning it off if you had to stop recording. If you turned it off, then you had to go through the five minutes of warm up to get recording again.

At any rate, I was covering a town meeting in Chadbourn, when the town board went into “executive session.” I was the only reporter at the meeting. When I left the room, I hit the pause button on my recorder rather than unplugging it from the wall and having to go through the whole warm-up cycle all over again when the meeting reconvened in open session. At any rate, after a 45-minute-or-so executive session, the town council reconvened. To my surprise, my recorder had been taken off pause. The first thing on the tape … was something to the effect of “fixed her … trying to record us” … and then I had a recording of the town council doing nothing that required it to be in executive session. My first real experience in how sunshine doesn’t always shine on government, but not by any means my last.

That’s why when I became a part of government, I viewed my job as helping to illuminate what government does. Jim Shepherd used to say, ‘If government has done something good, then the people need to know about it … and if government has done something bad, then the people still need to know about it so they can demand that it be fixed.’

In 1989, desktop computers were relatively new to government. Some public information officers were still writing news releases on typewriters — a few iconoclasts still used old Royal manuals. Fax machines were still something relatively new. Most of them still used that old, curly paper.

For the most part, public records were all paper — filing cabinet after filing cabinet of paper. There were problems even then with public records. I remember when DENR [N.C. Department of Environment and Natural Resources] first got into recycling in a major way… someone had stored several cabinets’ worth of records in old copying paper boxes in a hallway while they waited for a more permanent location. Some eager recycler “chunked them,” as our governor would say. Jim and I spent three days going through recycled paper to find those records. But, we did find them.

Even in those days, with the advent of desktop computers as the backbone of an office, we were having discussions about what was a public record when it came to computing. What about drafts? Didn’t the public have a right to know if documents changed dramatically from draft one to draft two to the final draft to the end product? Certainly things like grammatical changes weren’t all that important for the public record. But, what about when the end result bore little or no resemblance to the first draft? Wasn’t it important to know who was making what amounted to policy change by editing? Jim devised a standard that I have stuck with to the present — well I should say until March 4 — if the changes were purely style then you could overwrite the document. But, if the edits resulted in a real substantive change to the document, then each draft should be preserved.

As an aside on this point, I would urge you to make more public records requests around drafts. If you are doing a story about a controversial new policy — ask to see all the drafts that led to that policy.

In my years in state government, I rarely had anyone ask for those materials, but they can be telling. Equally telling is if no drafts exist, especially with a controversial change in policy.

But, back to the point of this speech. Public records are public records no matter what their form. And, there need to be some substantive changes in policy and law to ensure that the public is getting a full accounting from the people it pays. One thing that I told reporters after the governor sacked me, is that while I served at the will of Mike Easley… the citizens paid my salary. The taxpayers, the people of this state, therefore have the right to know what is going on in government. That’s the whole point of public records laws and policies. And, those laws and policies must keep up with the times.

Here are some things that need to be addressed if the sun is indeed going to continue to shine on North Carolina government:

The first is actually a matter of dealing with conventional paper records. There needs to be a consistent policy across state government on copying charges. The policy must be based on something real, not just an arbitrary figure. And, there needs to be a minimum threshold that allows the average person to get some things for free. Right now, if you go to DOT [N.C. Department of Transportation], Cultural Resources, the governor’s office, DHHS [N.C. Department of Health and Human Services], you’ll get different answers about how much per page you will be charged … if you’ll get anything for free … and most agencies can’t tell you how they arrived at the cost for copying. I’m proud to say that DHHS actually charges less than most other agencies — three and half cents per page — and does include a minimum threshold of up to $2 where copies are free. That’s because the controller’s office actually computed what copying paper and copying machine maintenance cost and used that to determine a real cost. And, someone with sense realized that it actually costs an agency more than $2 to process a check for less than $2. That means that the vast majority of public records requests, which usually amount to just a few pages of material, are actually provided free at DHHS.

There should be no exceptions to how much it costs to make a copy of a document, because a copy is a copy. Yet, at DHHS we have that problem. Another part of the general statutes allows a health-care provider to charge a patient or patient representative for making copies of a health-care record. So, when The News and Observer came to one of the DHHS hospitals, asking for copies of patient records, they were going to be charged according to this statute, which means that instead of paying three and a half cents a page, they were going to be charged up to 75 cents a page. We agreed to ignore the law on that one, over our hospital’s vociferous objection.

Secondly, there needs to be clear policy on email as a public record. I understand the governor has called for a review of email policy. I’ve probably dealt with public records for as long as anyone that will be on that review panel, so here’s what I think needs to be done:

In yesterday’s N&O, Franklin Freeman [Gov. Easley’s senior assistant for government affairs], who will lead this effort for the governor said this about the process: “What is the appropriate balance between the public’s right to know and the practicality and cost of maintaining, gosh, the — I would assume — literally tens of thousands of emails sent each day in state government.”

With few exceptions, most materials are public record. So rather than debating who deletes what and when, public officials should be required to maintain archives of their emails. Rather than cluttering up the state server and taking lots of time, as Freeman suggests, these archives could be maintained on discs or pst [Personal Storage Table] files. Memory is cheap and convenient these days. This wouldn’t require a huge amount of effort in terms of either financial cost or administrative practicality. It is simply a matter of building it into the process of doing daily business.

Public officials should understand that it isn’t a matter of what Internet provider is being used to talk about public business. If it is public business, then it’s public record, whether it is sent on a Gmail, Roadrunner, Hotmail or state email account. Some officials believe that if they use a personal email account, then they aren’t creating public records. That’s clearly breaking public records law, and it is happening now with little consequence to the lawbreaker. Anyone using a personal email account to do public business should be required to report that use and to properly archive public business produced in that fashion. With the advent of personal digital assistants like Blackberries, more and more business is being done electronically and on the fly. There needs to be a clear policy on maintaining backups of pda [Personal Digital Assistant] messages. There isn’t one now.

There are other changes that need to be made in the area of electronic records:

One of the things The News and Observer discovered during its mental health series, is that DHHS was overwriting fields in its databases, leaving an incomplete record of what had transpired. Let me explain. The database on companies that were being asked to pay back money to Medicaid on community services had a field for payback amount. But, it didn’t have separate fields for negotiated payback amount. So, the company could receive a letter saying that they owed Medicaid $50,000. Someone would type $50,000 into the payback database. But then the company would have an informal hearing on the issue with a DMA [N.C. Division of Medical Assistance] employee, who might lower that figure to $35,000. So, the person maintaining the database would just overwrite the $50,000 with $35,000. And, that figure could be overwritten again and again throughout the process, leaving an incomplete, flawed accounting for the expenditure of public dollars. Instead, there should be clear fields that show each stage of the process.
The public records laws around databases changed in the late 1990s, and they were good changes, requiring government to absorb the cost of removing nonpublic information like the names of Medicaid patients from public information like amounts spent on services for individual patients. But many of the Medicaid databases, and I suspect this is true across DHHS and state government, really did not keep up with these changes. The Medicaid fraud and abuse-tracking database, for instance, included a “comment” field. Because the person entering the material in the database didn’t understand the law or deliberately chose to ignore the law, the comment section often contained nonpublic information like patient names and Social Security numbers. To make that database public record, someone in my office had to go through thousands of comment entries to remove the nonpublic information — slowing down the time it took to get the information to the requesting party. That’s ridiculous.

The same law required departments to have a database directory. But it didn’t make it clear who was to maintain the database directory. The directory fell through the cracks at DHHS. I’m sure it did at other departments as well. Someone needs to ensure that the database directory for each department is updated on an annual basis and published online so that anyone can request and receive a database.

Other public record changes that are necessary for open government:

Forms should be designed so that nonpublic information can be quickly redacted from public information, and the people filling out those forms should be properly trained. The N&O had to wait for months on institutional patient death records from DHHS, because they so thoroughly commingled nonpublic and public information, requiring someone to carefully read each page of information and redact names and other identifying information. The N&O should have gotten these materials in a more timely fashion. This could be accomplished by putting all identifying information at the top of a form, where it can easily be removed and ensuring that the person writing the narrative understands that the narrative must not include identifiers like the person’s name.

• Consistency and timeliness of response to public records requests. Each agency should have someone on whose desk the buck clearly stops when it comes to public records. The name and contact information for that person should be clearly published. A request shouldn’t be allowed to languish as it goes from desk to desk — looking for a home. When a request is received, the requester should receive an immediate written response, either providing the information or explaining when the requester will receive the information and why it will take a given amount of time to provide that information. Having to explain, in print, why a response is going to take a while will ensure that requests that can be filled quickly are filled quickly.

• Holding those to account who break the state’s public record laws. Right now it is really difficult for a small newspaper or radio station — or, heaven forbid, the average citizen — to have the ability to sue if a government agency doesn’t provide public records. Even if the requester does bring a suit and is successful, they can still be on the hook for their own legal bills. There needs to be a bad-actor’s clause that guarantees a requester will recover legal costs when a government agency defies public record law.

• Personnel information. Right now, you can come to a state agency and ask for the public information on a state employee, which will include only the most recent personnel action in the starkest of terms like “fired” and the most recent salary information rather than a complete salary history. That’s not acceptable. It allows an agency to hide a whole lot of information that the public has a right to know. Take this example: Say employee X for some reason, maybe not a good one, gets a 15 percent raise on June 25, then gets a legislative cost-of-living raise on July 1. The second that legislative cost-of-living raise goes into effect, there is no public record of that employee getting the 15 percent raise just days before. Similarly, if an employee is fired or promoted, the public has a right to know for what reason. Not every fired employee gets as much ink as I have. In fact, my case is one of the few examples where the current administration hasn’t hidden behind the guise of “that’s a personnel issue and we can’t talk about it.”
After my firing and the subsequent reporting on emails, I do hope that there will be changes in at least the way email is handled within state government, but we don’t need to have something go wrong or accusations made in order for public records laws to be changed to keep up with technology. The laws should be reviewed every two years by a panel of experts, including reporters, citizen advocates, technology gurus, lawyers, and government folks who should recommend appropriate changes in law and policy to ensure that it stays current.

Finally, on a truly personal note, I’ve done a lot of thinking in the past couple of weeks about what I could have done differently. I loved my job and I miss it dearly. I really thought I did some good. I certainly regret losing the job, but I don’t regret anything I did. When I first came to state government, I lived by the words of one of my favorite politicians — Thomas Jefferson — who said in 1774, “The whole art of government consists in the art of being honest.” That’s what we should all expect of government — honesty. And, I can truly say to you — I was always honest.