How to Avoid a Public Records Request (A Government Primer)

Since the 1960s, so-called “sunshine laws” have helped to shine the light of public scrutiny into the dark corridors of government. Under state and federal law, any citizen can request documents that are made or kept by government agencies. Open records are vital to our government. They are an invaluable tool for keeping government officials accountable.

Unfortunately, that doesn’t stop government agencies from trying to get around the law and keep the public in the dark. Just this week, the U.S. Navy accidentally sent a reporter the Navy’s detailed strategy for stonewalling his public records request. The internal memo included several pending FOIA (Freedom of Information Act) requests. For each entry, Navy officials had written helpful advice to their public affairs officers:

I would recommend negotiating with the requester…Josh can help with crafting the language…

Recommend that you provide the requester with an estimate, as I can see the search and review, possible redactions, will be very costly. This may encourage the requester to “narrow the scope.”

This one is specific enough that we may be able to deny.

The sad thing is that this approach is all too common in government. Although public officials pay lip service to transparency, their actions show otherwise. Civitas files public records requests quite frequently, and it is the rare respondent who acts promptly and correctly in accordance with the law. There is an elaborate dance, which often features one or more of the following:

  • The runaround: Oh, sorry, this is the wrong place! You’ve got to talk to Jim in another department. What’s that? You already talked to him? He said to talk to us? Well, that’s just not true. Try talking to Jennifer.
  • The delay: Yes, we have received your request. Yes, it was sent three months ago. We are in contact with our public affairs people. They will advise us when it is completed.
  • The office lawyer: You asked me for every report from the past month. I interpreted your use of the word “every” to mean “some.” Perhaps you are unaware that this is an accepted definition?
  • The accountant: According to our calculations, the cost of responding to your request will be approximately $200,000. Where shall I send the bill?
  • The cricket: *Silence*

These tactics by government are frustrating, and intentionally so. When it comes to open records, sometimes government acts like a small child who would rather throw an hour-long tantrum rather than pick up a toy off the ground. But in the end, the response must always be the same as a parent’s: Be patient, and don’t let up until the child does what he is supposed to do.

When no one person knows all the laws in North Carolina, is state law too extensive?

Several weeks ago Civitas co-sponsored an event that brought together lawyers, legislators, and other professionals in the criminal justice industry.

Jim Copland is the Director of the Center for Legal Policy at the Manhattan Institute, where his work focuses on litigation reform. Copland introduced the speakers, as well as set the stage for the event. He noted

In recent years, a coalition of groups across the political spectrum has looked to reform “overcriminalization,” the trend in which the criminal law has been dramatically expanded and increasingly used to punish conduct that violates regulatory imperatives but is neither self-evidently wrong nor understood to be a crime.

Much of the reform effort has focused on federal law, and Washington, D.C., but most criminal law remains at the state level. Therefore, the Manhattan Institute’s Center for Legal Policy, in cooperation with various state and national partners, has begun looking at certain states’ criminal justice systems: New York, Illinois, Ohio, and now North Carolina.

This event launching our North Carolina efforts was co-sponsored by the John Locke Foundation, Civitas, and the NC Institute for Constitutional Law, as well as national partners The Federalist Society, The Heritage Foundation, and Right on Crime. North Carolina Supreme Court Justice Paul Martin Newby framed the discussion with a keynote address, and an engaging panel discussion followed, featuring Jeanette Doran (executive director of the NC Institute for Constitutional Law), Josh Howard (founder and partner of the law firm Gammon, Howard, and Zeszotarski), and Jeffrey Welty (a professor at the UNC School of Government).

This engaging discussion offers significant insights into how overcriminalization has taken root in the Tar Heel State, and it offers a blue print for reform for the state’s energized public leadership.

When no one person knows all the laws in North Carolina, is state law too extensive?  The discussion on the issue of overcriminalization is being brought to the table.

School sends home political fliers

Yes, I know Carolina Plott Hound broke this story last night, but it cannot receive too much attention.

Yesterday our friend Lady Liberty wrote about her anger  in finding a political flier in her child’s homework folder when he returned home from a Wake County school.  The flier was publicizing a “walk in” at the school on November 4th and encouraged attendees to wear “red 4 ed”  It is not legal to for a school to distribute political materials.  The flier is linked to a web site Organize 2020.   Interestingly, the last line of the organization’s rambling mission statement is : We need a union.

Do you think there might be a few connections to NCAE?

Why Obamacare is a Mess

The N&O yesterday re-printed an article from the Chicago Tribunewhich nicely highlights several of the problems the Unaffordable Care Act is imposing on citizens.

If you’ve tried to sign up online for health coverage under the problem-plagued Obamacare exchange, our sympathies. Many people have tried to create accounts and shop for insurance under the new law. Few have succeeded. Those who have enrolled have found that the system is prone to mistakes. Some applications have been sent to the wrong insurance company.

Wait. It gets worse. Those who have managed to browse the marketplace have often been hit by sticker shock

….

The Department of Health and Human Services under chief Obamacare cheerleader Kathleen Sebelius has had three years to develop this system. It has busted deadline after deadline, all the while promising that the system would be ready on Oct. 1. It has overpromised and underdelivered. The excuse? Demand was unexpectedly high, crashing servers. Unexpected? Americans have been bombarded with marketing campaigns and news stories and outreach efforts on behalf of Obamacare. And now Sebelius and Co. are shocked that people are logging in to … buy insurance? Come on, Sebelius.

The article also spotlights stories and evidence from Illinois, issues that are common across the country.
Obamacare horror stories are in no short supply here in North Carolina. As a reminder, Civitas continues to receive and publish the stories from real people sharing how they have been affected by this train wreck.

Major Surgery Can Cure ObamaCare

There is a way to stop ObamaCare.

But like any major surgery, taking out Obamacare will require strong nerves.

At a town hall event in Wilmington, Civitas President Francis De Luca pointed out how it can be done. (He’s on at the 1:30 mark.)

It’s very simple: Our elected representatives just have to slice spending for Obamacare out of the budget. Under the Constitution, they have authority to cut off spending for the program. If they have the guts to do so.

Meanwhile, the bad news keeps coming. Advocates of the health-care law say it was needed because millions of people couldn’t get health insurance. Well, when ObamaCare goes fully into effect … 30 million people will still lack health insurance.

Progress!

Meanwhile, news reports say “The AFL-CIO is poised to approve a resolution harshly critical of ObamaCare.

When a key part of the Democratic Party’s base is rebelling, you know things are bad.

The worst part, one observer says, is that ObamaCare is already decades out of date. The whole ObamaCare scheme is based on assumptions that have been overturned by new research, even as new technology offers new ways of getting and staying healthy.

We can replace knees and hips and shoulders, and even lungs and hearts. So we can replace Obamacare  — if we and our elected representatives have the courage to seize them.

HB 392 Becomes Law and Measures for Drug Testing and Background Checks for Certain Welfare Programs

The NC General Assembly this morning voted to override two bills that had previously been vetoed by Gov. Pat McCrory. One of the bills Civitas has been reporting on was a bill that would drug test those who receive certain welfare benefits (HB 392). But at 9:17am on September 4, 2013 HB 392 became law with a vote of 34-10 in the North Carolina Senate.  The Senate’s vote follows yesterday’s House vote to override by a 77-39 margin.

Gov. McCrory had issued several statements on his website that says why the veto should stay for HB 392 and Vetoed the bill several weeks ago.

Debate on both bills was sparse, and no one spoke against the overrides and both bills became law before 9:30am.

One measure requires drug testing and criminal background checks for applicants to certain welfare programs. Those applying for federal Temporary Assistance for Needy Families benefits, a cash assistance program, would have to undergo both background checks and drug screenings under the bill. Applicants for food stamps would have to undergo only background checks, including fingerprinting.

“We don’t want hard working North Carolinians to be supporting illegal drug use,” Sen. Jim Davis, R-Macon, said.

The other vetoed bill, HB 786, would expand the exemption of seasonal workers of the E-verify program from 90 days to up to 9 months. The House overrode that veto yesterday b 84-32, and this morning the Senate voted 39-5 to override the governor’s veto.

Both bills now become law.

The “Press” Teams Up on NC’s Election Reform Bill

In an article from The Insider, written by Michael Biesecker of the Associated Press and Jodi Leese Glusco of WRAL, it was reported that Gov. Pat McCrory was not familiar with some provisions in the landmark election reform bill, HB 589 Voter Information Verification Act (VIVA), passed by both the state Senate and House last week.

They quoted McCrory as saying; “There is plenty of opportunity for voter registration — online, offline, through many methods.” And then the writers go on to proclaim that “North Carolina has never allowed voters to register online.”

Mr. Biesecker and Ms. Glusco might be embarrassed to know that they got this little piece of information in their “gotcha” article wrong.

In mid-February this year, Civitas released a study that documented how State Board of Elections (SBOE) bureaucrats conspired with a private company, working for the Obama campaign, to facilitate a form of online voter registration for the 2012 General Election – in violation of state law.

 “In a blatantly partisan move, the staff of the North Carolina State Board of Elections (SBE) successfully subverted state law to facilitate online voter registration in North Carolina by the 2012 Barack Obama campaign. In doing so they coordinated with partisans behind closed doors, lied about the NC Attorney General’s Office concurring with the SBE staff on the issue, and dodged oversight by their own board and the legislature. The end result was to add thousands of people to the North Carolina voter rolls illegally.”

Evidently, Biesecker and Glusco aren’t aware that the legislature took steps in HB 589 to prohibit this kind of online voter registration. NCGS 163-82.6(b) was rewritten to make sure that the SBOE will not allow such an end-run around the  law to happen again. Part 13 of the legislation was named “Wet Ink” on Voter Registration Forms and makes it very clear that only state generated forms and forms included in Article 21A of the North Carolina election code (Uniform Military and Overseas Voters Act) can include an electronically captured signature.

In their article, Biesecker and Glusco went on to point out that the Governor wasn’t familiar with the provision that would put an end to registering 16- and 17-year-olds. The real question is: Who else would be familiar with this law but the ultra-liberal organizations who pushed this legislation through the legislature in 2009 in order to obtain personal information about teenagers that they couldn’t get anywhere else?

HB 589 brings quite a few changes to North Carolina’s election law – most of which will not been reported on by the mainstream media. And, we can be sure that any reporting they do will come straight from the liberal-left’s talking points.

Voter Watchdog Group Claims Nearly 400 Dead People Remain on Voter Rolls

(RALEIGH) – The Voter Integrity Project is demanding the Wake County Board of Elections clear its voter rolls of 386 deceased citizens. The group says it matched the voter rolls against the same official death records the state Department of Health and Human Services provides to the State Board of Elections each month.

“North Carolina election law mandates a monthly process for election officials to remove the dead people from the rolls,” says project spokesman Jay DeLancy. “One of the big loopholes in our fraud-friendly election laws is that nobody is held accountable if it doesn’t get done,” he says.

Voter Integrity Project research director John Pizzo says he found similar problems in 2010 in Congressional District 13, which includes Wake County. Pizzo says the election officials were notified and given the names of the deceased found on the rolls then. His team was surprised to find 74 of the names of the deseased given the officials were still on the rolls two years later.

“There may be some other explanation,” says Pizzo, “and I would be interested in hearing it, but I’m beginning to think somebody in that office dropped the ball.”

Volunteers working with the Voter Integrity Project filed similar challenges in two other counties. They notified the Alamance County Board of Elections about 123 names of dead people still on the rolls. Volunteers came up with 77 deceased citizens on the rolls in Halifax County. Similar challenges could be filed in other counties in the coming weeks.

New NC Gun Law Explained

Last night, HB 937, “An Act to Amend State Firearm Laws,” passed in both houses of the General Assembly. The bill is headed to the governor, where it will be signed in to law. Here is a quick breakdown of the provisions included in the law.

The Good:

  • Concealed carriers may now leave their weapons in a locked vehicle on a college campus. In 2002, an active shooter at a Tennessee law school was halted by two concealed carry permit holders who retrieved their handguns from their cars when they heard gunfire.
  • Increased penalties for violators. Felons who use or brandish a firearm can have added years tacked on their sentence – up to 72 months. The law also creates a status of “armed habitual offender” that can be applied to felons who commit more than one firearm-related felony.
  • Enhanced enforcement of existing laws. Involuntary commitment (institutionalization) and other legal findings of mental incapacity are now reported to NICS, the national criminal background check used for firearms purchases. This allows gun stores to identify mentally ill people who attempt to obtain weapons.
  • Concealed carriers may now carry at funerals, parades, establishments that sell alcohol, and establishments that charge admission. The last two are a particular improvement over existing laws.
  • Handgun purchase permits and concealed carry permits are no longer public records. Earlier this year, a New York newspaper published a database of concealed carry holders. North Carolina has passed legislation to prevent a similar thing from happening in the Tar Heel State.
  • Hunters can now use suppressors. Suppressors reduce recoil slightly and minimize the potential for hearing loss.

The Bad:

  • The handgun purchase permit system is still in place. We wrote about this previously – NC is one of only 12 states that require citizens to have a permit to purchase a handgun. Sheriffs will retain control over the purchase permit system, but under the new law they must give a written explanation if a purchase permit is denied.

The Verdict:

All told, this is a victory for North Carolina gun owners and for gun rights. HB 937 is not perfect, but it is a huge step in the right direction.

NC Tax Reform 2013: Mission Accomplished or a First Step?

The N.C. House and Senate are expected to give final approval today to tax reform legislation. From there, it will go to Gov. McCrory for his approval and then it will become law.

As reported today by the Carolina Journal, national tax analysts are saying North Carolina’s tax reforms “blew other states away.”

Patrick Gleason, director of state affairs at Americans for Tax Reform, spoke to the reduction in the top marginal income tax rate of 7.75 percent that would be drop in 2015 to 5.75 percent

“North Carolina, with a 25 percent reduction in the top rate, pretty much blew the other states away,” Gleason said. Gleason and Elizabeth Malm, an economist with the nonpartisan Tax Foundation, said that North Carolina ranks at the top of the nation in magnitude of tax reforms this year.

Malm said the changes would make North Carolina’s tax code friendlier for business, jumping the Tar Heel State from 44th to 17th in the Tax Foundation’s State Business Tax Climate Index.

The Wall Street Journal has also taken notice:

After months of deliberations and legislative slips and slides, North Carolina’s Republican governor, Pat McCrory, and the GOP leaders who run the House and Senate have finally reached a deal on tax cuts. The plan is an impressive trifecta that will slash the personal income tax to 5.75% from 7.75%; cut the corporate tax to 5% from 6.9%; and eliminate the state death tax.

“This is a big deal for growth, and we still think we can come back in the next couple of years and get the rates even lower,” says state Senate President Phil Berger. More than anyone, Mr. Berger gets credit for making this cut happen when it looked like it might die a slow death. State think tanks like the Civitas Institute, which provided the intellectual ammunition, also deserve praise. (Thanks for the shout-out!)

There is little doubt that the new tax code will be far more favorable to economic growth than the current code. Now the question becomes: is this the beginning or the end for tax reform? Senate leader Phil Berger and tax reform champion Bob Rucho have indicated this is the first step in a transition to more comprehensive tax reforms.

Indeed, the legislation includes a section directing the Revenue Laws Study Committee to study ten tax issues and report its findings next year. Included in  those ten are:

  • possible repeal of privilege taxes
  • the impact of the sales tax refund for nonprofits
  • potential elimination of the franchise tax on corporations
  • the feasibility of expanding the sales tax base to additional services

Each of these issues were included in various earlier tax proposals but didn’t make it into the final bill. The fact that legislators are mandating more study on these items suggests they will be on the table in the near future.