News: CJ Exclusives

Media Sue Easley Over Public Records

Carolina Journal and nine other media members join in the lawsuit

Carolina Journal and nine other North Carolina news organizations filed a civil lawsuit against Gov. Mike Easley on Monday, claiming multiple and “systematic” violations of the N.C. Public Records Law.

The plaintiffs asked a judge to “enter a judgment declaring that policies and procedures promulgated and implemented on behalf of the defendant [Easley] and the actions taken by him as alleged … violate the Public Records Law,” according to the complaint filed in Wake County Superior Court.

Joining CJ in the complaint were The News & Observer of Raleigh, The Charlotte Observer, The Fayetteville Observer, The Associated Press, and the N.C. Press Association. Other plaintiffs were: Media General Operations, which publishes 10 N.C. newspapers, including the Winston-Salem Journal; Freedom Communications and Freedom Eastern North Carolina Communications, which together publish seven N.C. newspapers; The Wilson Daily Times; and Boney Publishers, which publishes The Alamance News.

“Our position is that the policies of the governor and of those who act at his direction or under his authority violate the Public Records Law as it relates to retention of documents — in this case, most frequently e-mail documents — but other documents as well,” said Amanda Martin, one of the plaintiffs’ lawyers.

The suit contends Easley and his staff violated the state’s Public Records Law by: mandating that certain e-mail records be destroyed, destroying at least one written document, devising e-mail retention policies that deviated from the law, and failing to provide for preservation of public records.

The plaintiffs asked for a court order “permanently restraining and enjoining” the governor and his staff from pursuing illegal policies. They also requested that the court require compliance with the Public Records Law and order the governor’s office “to take all measures available to them to retrieve any public records that they deleted, disposed of, lost, or failed to preserve in violation of the Public Records Law.”

The suit also asked the court to compel Easley to make available all requested public records that have been withheld from the plaintiffs, and it asked the court to force Easley to foot the legal bill.

The first alleged violation stemmed from The N&O’s recent investigations of the state’s funding, delivery, and oversight of mental health services. “In part this action arises out of the defendant’s failure, refusal, or inability to provide access to e-mail messages and other public records that were known or believed to be in the defendant’s custody,” according to the complaint.

Failure to produce the records “was attributable in part to the systematic deletion, destruction, or concealment of e-mail messages sent from or received by the Governor’s Office,” the lawsuit alleges.

That allegation stems from an affidavit filed by Debbie Crane, who was fired March 4 as N.C. Department of Health and Human Services public affairs director.

“Based on Ms. Crane’s affidavit and other information the plaintiffs are informed and believe that during the defendant’s tenure as Governor, members of his staff regularly discouraged the persons responsible for communicating with the Governor’s Office from sending e-mail messages to the office in order to avoid creating records that would be subject to disclosure pursuant to the Public Records Law, particularly if the subject matter of the communication was controversial,” according to the suit.

“Members of the defendant’s staff also instructed cabinet agency employees that if they did send e-mail messages to the Governor’s Office such messages were to be deleted from their computers’ ‘Sent Mail’ boxes immediately after they were sent, and that they should then go to their files for ‘Trash’ or ‘Deleted Messages’ and delete them again,” the complaint says. “A purpose of this ‘double delete’ procedure was to remove the messages from the employees’ personal computers so they would not be recorded and archived by the nightly ‘back-up’ of their computer files.”

That e-mail deletion policy and procedure was “intended to be comprehensive” and was implemented “willfully and for the purpose of evading the Public Records Law and depriving the people of North Carolina of access to information and records in violation of the Public Records Law,” according to the complaint.

The second alleged public records violation stems from a comment Easley made to reporters last month. Easley said he had received a handwritten note or message from former Health and Human Services Secretary Carmen Hooker Odom. The governor told reporters the note addressed some of the issues of mental health oversight reporters had been pursuing.

When reporters asked to see the note, Easley is quoted as responding that he “chunked” it. “The defendant personally destroyed the communication in violation of the Public Records Law,” according to the complaint. “On the basis of public statements by the defendant, plaintiffs are further informed and believe that he very likely has personally discarded or destroyed other public records in violation of the Public Records Law.”

The third alleged violation focuses on an e-mail retention document from the N.C. Department of Cultural Resources, which oversees public records issues for executive branch agencies. Guidelines within the document “fail to comply with the Public Records Law in several respects,” according to the complaint.

“They provide State employees and officials who send and receive e-mail with criteria that are inconsistent with the Public Records Law for determining whether a particular e-mail message is or is not ‘made or received in connection with the transaction of public business’ or is ‘used to transact public business,’” the suit says.

“They authorize individual e-mail users to delete or dispose of e-mail messages that are made or received in connection with the transaction of public business if they are of ‘short-term value’ or ‘when they no longer have reference value to the sender or receiver of the message [emphasis in the original document]. Neither of these disposal criteria is authorized by the Public Records Law.”

The Cultural Resources guidelines are also inconsistent with court rulings “holding that the law is to be interpreted expansively and liberally in order to maximize public access to government records,” according to the suit.

The fourth alleged violation asserts that the governor and his cabinet agencies do not have “adequate” electronic data-processing systems for storage or retrieval of e-mail messages sent or received in connection with transaction of public business.

Article III, Section 4 of the state’s governing document provides that “The Governor shall take care that the laws be faithfully executed.” Because of each of the violations, the suit contends “the defendant has failed to carry out his duties” set out in the Constitution.

“The plaintiffs are basically seeking two things: a declaration that the policies, procedures, and actions of the governor and those who act at his direction or under his authority violated the Public Records Law and an injunction to stop further violations,” Martin said.

Mitch Kokai is an associate editor of Carolina Journal.