Retired journalist Tom Bennett submitted the following open letter to the North Carolina Open Government Coalition, which you can read here.
‘I cannot agree that releasing records is as important as my core mission, which is educating people,’ the UNC System’s new boss says on Sunshine Day
By Tom Bennett
In his 10th week as president of the University of North Carolina System, Tom Ross says he arises each day “knowing we have 50,000 employees and 220,000 students most of whom are between the ages of 18 and 24, and somewhere the previous day somebody has screwed up.”
“What I then want to know is, did you (in the media) find out about it?” Ross said.
This was 2011 Sunshine Day, sponsored by the Sunshine Center of the North Carolina Open Government Coalition, which has been in operation since 2007 at Elon University’s School of Communications in Elon, N.C.
Around the nation, Sunshine Week is a celebration of open government that occurs in the week of James Madison’s March 16 birthday. For North Carolina’s part in it this year, the Elon center chose the Salisbury Depot for an afternoon luncheon and workshops. There was a good crowd but a passing freight train just outside the windows competed for the train of thought of the state’s open-government advocates.
“In my career I’ve seen the tension that exists between the right to know and the right to personal privacy,” said Ross, who succeeded Erskine Bowles Jan. 1 as president of the vast system of 16 campuses.
That very tension was palpable in the air. News organizations have sued officials of the University of North Carolina at Chapel Hill seeking access to public records in the university’s investigation of its football program, and Ross has inherited this problem.
The parties on the other side say UNC is using the 1974 Family Educational Rights and Privacy Act (FERPA) as an excuse to sit on the records, according to Daily Tar Heel Editor Sarah Frier when the suit was filed last October.
That doesn’t seem to be very far off-track, based on what the new UNC Systems president said in his luncheon speech.
“Forty-two percent of our students are Pell-Grant eligible,” he said, inferring at least for me there could be one huge, sudden cutoff of federal funds if records were released to media under our Public Records Act.
But Ross was looking for common ground, too, and he added:
“I hope my record is one that reflects a commitment to openness and transparency. As a judge, as far as I can recall I never closed a courtroom. I never found a reason in 17 years to close one.
“At UNC, we have seen an explosion in the number of requests for open records. We have disclosed tens of thousands of pages, and to answer an e-mail request is extremely time-consuming.”
No one he employs at UNC Systems is “dedicated to answering public-records requests,” Ross said.
“As president, I’m going to try to strike the right balance between the rights of the press and the rights of individuals to privacy.”
THERE WAS a question from the audience with no floor mike in use, and it came as a freight train moved slowly past the depot windows. However, the gist of the question became clear from Ross’s reply.
“I cannot agree that releasing records is as important as my core mission, which is educating people,” Ross said.
The Greensboro native graduated from Davidson College in 1972 and with honors from the UNC School of Law in 1975. He was an attorney; chief of staff to U.S. Rep. Robin Britt; state superior court judge; director of the N.C. Administrative Office of the Courts; executive director of the Z. Smith Reynolds Foundation in Winston-Salem; and for four years, 2007-10, president of Davidson College.
THERE ARE TWO SIDES to every dispute and Amanda Martin of Raleigh’s Stevens Martin Vaughn & Tadych law firm was at Sunshine Day to provide such a balance.
“In 40 years, no institution has lost a penny over release of records under FERPA,” said Martin.
She represents the N.C. Press Association and Daily Tar Heel in their suit against the UNC System. According to the Duke Chronicle (which surely seems like a non-solicitous source about any UNC matter), the other plaintiffs include the Charlotte Observer; News 14 Carolina cable TV station; WTVD Television; Capitol Broadcasting; the Associated Press; and Media General Operations.
According to Martin, the remaining issues between the parties five months later are phone records; the records of tutoring programs at UNC; and student-athlete parking records. That last one sticks in her craw.
“I don’t see how a parking ticket is an educational record,” she said.
President Ross employs no one “dedicated,” or tasked specifically for, allowing inspection and copying of records, he said. However, Martin responded: “It’s (records compliance) not in addition to your job. It’s a part of it.”
One of the titans of freedom of information in the South, the Stevens Law Firm of Raleigh became Everett, Gaskins, Hancock & Stevens. Now one of four iterations arising from that, as you see when you go to its web site, is Stevens Martin Vaughn & Tadych.
So this reflects the new stature of Martin, a tireless press association spokesperson (and panelist at our 1999 National Freedom of Information Coalition conference in Atlanta) as a named partner in a Raleigh firm.
On the morning of Sunshine Day, North Carolina AP reported House Bill 87 and its companion Senate Bill 344 in the Assembly would “guarantee that every record is open to inspection.” That’s if the bill were to pass both houses; be signed by Gov. Bev Perdue; and be approved by voters in a November 2012 referendum to amend the 1971 state constitution.
IF ONLY it were true. As you see in lines 8-10 of the current version of H87 on the House web site, there’s the familiar hedge how, in this case, Article 14 would “grant every person the right to inspect or copy any public record … except with respect to records exempted.”
For a century-and-a-half, legislators (not a few of them newspaper editors with huge conflicts of interest) rode trains to Raleigh and the other state capitols. Looking after one special interest or another, they voted into law thousands of exemptions to open government across the Sun Belt.
This year’s candidate for secrecy in North Carolina (not a word about which was said on Sunshine Day) is House DRH 70091-LB-199A by Reps. Larry Womble and Earline Parsons, both of Winston-Salem, to establish the following:
“Records in the custody of the state, including the North Carolina Justice for Sterilization Foundation, concerning the North Carolina Eugenics Board program, are not public records.”
TO REALLY get on board with open government, start by taking stock of the efforts over the decades by lawyers such as Martin to document what’s exempt.
North Carolina has three. They are:
- “Guide to Open Government and Public Records,” by Roy Cooper, N.C. Attorney General, this is a good publication of his office and the press association and it has highlights;
- “North Carolina Media Law Handbook,” edited by Cathy Packer, Hugh Stevens and Amanda Martin,” 2007, North Carolina Press Foundation and UNC School of Journalism and Mass Communication, with a tough format in which one sentence says what’s open, the next says what’s not, and so on; and
- “Mass Communication Law in North Carolina” by Ruth Walden, 1993, one of the paperbacks in the New Forums State Law Series by an Oklahoma publisher. That series is critical for anyone trying to understand U.S. freedom of information. Each volume was dated the day it was published because still more exemptions had been added during the work on it. They joined (to paraphrase Emerson) an enumerable train, like iron boxcars being dragged across your state by special-interest lawyers at the switch of the locomotive. However dated her work, Walden is credited by her UNC colleagues in the newer Media Law Handbook.
AT 67 YEARS OF AGE and in a time of $3.50-a-gallon gasoline, I drove 499 miles round-trip today from my home near the Tennessee state line to check on the progress of the North Carolina Open Government Coalition.
I and others volunteering in our states over the last quarter-century began anticipating such a move here in the 1990s, the decade in which most coalitions were formed. (Press associations still faithfully and sincerely promote freedom of information as they concentrate on saving their lucrative legal-organ statutes, which are doomed by the Internet. Their efforts in this regard are a little-understood and quixotic aspect of the media overhaul now in full churn.)
I retired to North Carolina in ‘06, attended this coalition’s first Sunshine Day event at Elon in ’07, and was at succeeding events at Greensboro, Asheville and Salisbury. That makes me a charter member since Elon-gation.
This day I happened to be seated at a table next to a project editor editor of the News & Observer of Raleigh. We were talking about the startup of this open-government coalition. “Yes, I used it,” the man said, meaning to get introduced for his paper the two-year-old bill now in the General Assembly for greater transparency of public-employee personnel records. Those four words were an affirmation of the worth and existence of this new group. The feeling I have today is a good one. The train is leaving the station.
Tom Bennett of rural Cherokee County, N.C., is a retired journalist.