A Charlotte-area charter school has responded to a public records request by demanding an up-front payment of $7,500, saying that’s the estimated cost of paying a contractor to produce the emails and a lawyer to oversee the work.
Two legal experts who reviewed the letter from the lawyer for Thunderbird Preparatory Academy say the Cornelius charter school appears to be levying charges that go well beyond what’s allowed by North Carolina’s public records law, though that law allows room for interpretation.
“Unless you tell me there is something wildly out of the ordinary here, I see essentially no world in which $7,500 would be a reasonable estimation of legitimate charges,” said Amanda Martin, lawyer for the N.C. Press Association.
“This is an outrageous bill,” agreed Jonathan Jones, director of the N.C. Open Government Coalition.
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State education officials are staying out of the dispute, saying they don’t provide legal advice to schools. That means the question of what constitutes a reasonable fee will go unsettled if the group seeking the emails backs away, or be settled in court if the group sues.
The dispute involves two small entities, but illustrates a tension that’s relevant for any North Carolina citizen who wants access to public records, to taxpayers who foot the bill and to all public bodies that struggle to keep up with the legal demands of preserving digital communication.
The request comes from Charter School Ethics, which describes itself as a Texas-based charter school watchdog group that remains anonymous for the safety of its volunteers. The group, which communicates by email, filed a request for nine months of emails related to a consultant working with Thunderbird.
It joins a roster of news media, citizens and businesses that regularly file requests for public records, some of which lead to court battles and public disputes. For instance, a coalition of media and public interest groups sued then-Gov. Pat McCrory in 2015 when his office balked at providing public emails. The Observer has also reported that Mecklenburg County fails to preserve text messages on county phones and officials’ personal devices, even though state law defines texts as public records.
On the other side is Thunderbird Prep, a small, struggling charter school whose complex financial arrangements have led to scrutiny from state officials. It’s part of a rapidly growing segment of North Carolina’s public education scene, with the state spending $513 million on 167 schools in 2016-17.
Because charter schools receive public money – not only from the state but from counties that must pass along a per-pupil share of the education budget – they are required to follow state law on public records and open meetings. But because each school is governed by a self-selected board of volunteers, charter boards seldom receive the public scrutiny that elected bodies do. Public access battles have to be fought school by school, as the Observer did when it requested salaries for charter school employees.
In late September, Charter School Ethics requested copies of all email correspondence between Thunderbird Prep and consultant Lori Manning, who was the subject of an ethics investigation in a previous job in South Carolina. Michelle Massingale Dressler, Thunderbird’s lawyer, replied that the request would encompass almost 9,000 emails, which would require hiring someone to read each message to ensure that “confidential, privileged, or other prohibited or personal information” is not released.
Please remit a deposit to my office in the amount of $7500. ... The documents will not be released until the final accounting and payment is made in full.
Thunderbird Prep attorney Michelle Massingale Dressler
Dressler’s letter said that would cost 87 cents per page, and would require her to review the work afterward.
“The estimated charge to complete the request is $7,500, not including my attorney fees that will be incurred in the process,” she wrote. “The ultimate charge may be more or less. You will be responsible for any amounts incurred over the $7500. If the entire $7500 is not used, we will reimburse the remaining amounts. Please remit a deposit to my office in the amount of $7500.”
Charter School Ethics forwarded that response to the Observer and the state attorney general’s office. Laura Brewer, spokeswoman for Attorney General Josh Stein, said the office informed the group about mediation opportunities. “Since this matter may end up in litigation, we are not able to take a position on the specifics of the issue,” she added.
State law allows public bodies to charge the actual cost of reproducing public records, and to add a “reasonable” special service charge for requests that are large and/or complex enough to demand “extensive” personnel time or IT support. Those terms are undefined.
This is an outrageous bill.
Jonathan Jones, director of the N.C. Open Government Coalition
Martin and Jones, who reviewed the request and the response at the Observer’s request, said Thunderbird’s fees seem excessive.
“Members of the public cannot be charged a fee for the separation of confidential from non-confidential information. So if that’s what the legal fees are to recover, they are improper,” Martin said.
“The request is large and probably justifies the use of the special services charge, but not at $45 an hour, and none of the lawyer’s fees,” said Jones.
For now, the fate of the query remains unresolved.
Thunderbird board chair Taft Morley, who lives in Utah, said this week that his board has “complied with all requests in good faith.” His lawyer suggested Charter School Ethics could narrow the request to reduce the volume and the cost.
“We have yet to hear from them,” Morley said. “If we do, we will continue to act in good faith and in compliance with state statutes.”