***Update: After Policy Watch’s Tuesday report, Superintendent Mark Johnson’s office said they were ready to turn over some emails.
N.C. Superintendent of Public Instruction Mark Johnson’s inaction on a long-standing public records request from Policy Watch may be a violation of state law, a prominent North Carolina media attorney says.
“Public records laws say public agencies have a responsibility to respond as promptly as possible,” said Amanda Martin, general counsel for the N.C. Press Association and an attorney with Raleigh-based Stevens Martin Vaughn & Tadych. “There is almost no interpretation of which I would agree they are doing that. For that reason, I think they are violating the law.”
Policy Watch submitted a request for the new superintendent’s emails on Jan. 26, more than three weeks after the Winston-Salem Republican took office following a surprise defeat of Democrat June Atkinson in November.
A spokeswoman for the Department of Public Instruction (DPI), Vanessa Jeter, responded that day to say the records request had been received. In follow-up emails on Feb. 1 and Feb. 8, Jeter said the request had been forwarded to DPI’s information technology and legal departments, pointing out the superintendent’s emails would need to be reviewed in order to redact any confidential information.
Under North Carolina’s public records law, that would include certain types of protected information such as private employee records and attorney-client communications, among other exclusions.
In a March 22 email, DPI told Policy Watch that Johnson’s office was still working on the records request. And on March 31, Jeter wrote that the “hold-up” concerned a piece of software that would allow for a search of Johnson’s emails.
“If that is not important to you, we can handle it differently and move forward more quickly,” Jeter wrote.
In an April 4 response, Policy Watch asked for Johnson’s office to proceed without the software in order to obtain the records “sooner rather than later.”
Since then, there’s been little indication of any progress on the public records request, with follow-up emails from Policy Watch in late April, May and June often prompting no response from Johnson’s office.
Martin says the superintendent’s office appears to be violating one key tenet of the state’s public records law, which advises that public officials such as Johnson should turn over requested documents “as promptly as possible.”
And while Martin points out that communications from an agency such as DPI will include confidential information that must be redacted, the length of time that’s passed to complete a records request for roughly three weeks of emails seems inappropriate.
“The statute does not speak in terms of the number of days,” she said. “But says as soon as these records can be provided, they should be. Based on what I understand of the situation, it appears to me that is not being done.”
Frayda Bluestein, a public law professor and public records expert at the nonpartisan UNC School of Government, declined to take a position on the matter, but she pointed out that “individuals have a right to inspect records at reasonable times.”
Bluestein said the state’s law is intentionally vague when it comes to the timeline for record requests. That’s because of the greatly varying size and scope of requests made of public officials.
According to Bluestein, the size of a request, the size of the staff reviewing the request and the amount of confidential material enclosed would all come into play in determining whether an agency or a public official is violating the public records law.
Yet she points out individuals who feel officials are not following the law have the option to file suit, with the possibility of collecting payment for attorney fees if the courts determine an official or their office has “knowingly” hindered access to public records.
“You don’t have to drop everything and do it,” says Bluestein. “But you can’t just set it aside and not respond.”
Bluestein adds that, while public officials have a growing number of communications—including phone texts and emails—that are susceptible to records requests, leaders must still honor the law expediently.
“The reason we have open records and open government, to the extent that we do, is so people can know what’s happening and trust what’s happening and get information about how their elected officials are behaving in government,” she says.
While the new superintendent has eschewed any major policy reforms since taking office, Johnson has promised to roll out changes to the state’s top K-12 agency following an ongoing “listening tour” of North Carolina school systems.
Johnson has declined multiple interviews with Policy Watch since January, although he has spoken to a handful of other media organizations in the first six months of his term. He also did not respond to Policy Watch communications regarding this report.
In the meantime, he’s become embroiled in a pending lawsuit between North Carolina lawmakers and the State Board of Education, a panel of gubernatorial appointees, over the division of powers between the superintendent and the state board.
GOP legislators sought to imbue greater hiring and budgetary powers in the newly-elected Republican’s office in December, but members of the state board, which is also currently controlled by Republicans, claimed the move violated the state constitution.