from: Sunshine Request <[email protected]>
to: Greg Shull <[email protected]>
cc: Leigha Sink <[email protected]>, Ginger Jackson <[email protected]>
date: Jul 19, 2023, 2:02 PM
subject: Re: Records Request re: All electronic communications related to “bullies”, “bullying”, “fights”, or “violence”. From 01/02/23 – 02/09/23.
Hi Greg,
My request was submitted to your offices on Feb 17, 2023, 1:52 PM.
(February 2023) Request for Cleveland County, NC Schools: All electronic communications related to “bullies”, “bullying”, “fights”, or “violence”. From 01/02/23 – 02/09/23.
I appreciate you letting me know that you’re going to work to fulfill the request. However, I’d like to note that it is unrelated, and of no consequence to me and my request, that someone else in the public may have submitted a similar request to your office.
As I stated when I originally submitted the request: The request above has been sent solely from the email address [email protected] . If anyone other than that email address contacts you to pursue a similar request, it did not come from me or my Team. Please do not commingle or treat that as an alteration or cancellation of my request – I intend to continue to pursue my request.
Additionally, I have followed up with you, Leigha, and Ginger three times since June 02 — asking for additional explanations / clarifications to your claim that there would be a “special service charge” for my request. I have received no response. I have not agreed, and am not agreeing to pay, any fees for this request. It is inappropriate for you to charge them.
I insist that I receive a response to the email I’ve sent you on Friday June 02 @ 1:57pm. Copied below. Thanks.
from: Sunshine Request <[email protected]>
to: Leigha Sink <[email protected]>
cc: Ginger Jackson <[email protected]>, Greg Shull <[email protected]>
date: Jun 2, 2023, 1:57 PM
subject: Re: Records Request re: All electronic communications related to “bullies”, “bullying”, “fights”, or “violence”. From 01/02/23 – 02/09/23.
Hi Leigha and Greg,
I’ve spoken with the Director of Sunshine Request. We have several additional questions.
We ask these questions because the law specifies that special service charges “shall be reasonable and shall be based on the actual cost incurred for such extensive use of information technology resources or the labor costs of the personnel providing the services, or for a greater use of information technology resources that is actually incurred by the agency or attributable to the agency.”
For all of the following reasons, we feel strongly that the special service charge is unreasonable in this case. We are asking again that you waive the special service charge for this request:
First –
You’ve said the total cost is “3 hours x $50/hr = $150 (special service charge) 1 flash drive ($15.00) = $15 (actual cost)” totaling “$175.00”. That total is incorrect. It’s actually $165.
Next –
At one point you said fulfilling my request will involve “… extensive use of information technology resources, including labor costs of the personnel providing these services” to put 3200 emails “in a readable format.” … “Hence, the requestor will incur a special service charge in the amount of $175.00.” You also said later that “… our IT Director spent 3 hours of time converting the search results from our specialized software into a file that can be downloaded onto a flash drive.”
Can you please clarify exactly how that $50 / hr rate for the “special service charge” was determined and calculated initially? Was that an estimated time requirement, a rounded amount, or an exact figure? What is the rate of the “lowest paid staff” that actually worked on completing this request? Does your IT Director make $50 / hr?
You have not indicated that this rate corresponds to the actual cost incurred to produce these records.
Additionally –
3 hours of time hardly seems excessive or extensive, and it is below the commonly-accepted thresholds for which a special service charge is assessed. Among most government entities that have written policies for special service charges… there is typically a threshold set of at least 4 hours before a special service charge is required. For example, the City of Asheville doesn’t assess a special service charge unless a request is estimated to require more than 4 hours.
You indicated that existing staff will perform the work in retrieving and processing this request. NC Public Records statute is commonly interpreted to allow special service charges only in exceptional circumstances, and it is generally understood to be applicable only in situations where the use of IT resources is truly specialized and excessive, or if it’s necessary to contract with an outside individual or company for assistance.
For example, if the school needed to contract an outside company to retrieve these records, the fee may be reasonable. However, in this circumstance the school has indicated that the work to retrieve these records was performed by the IT Director. As a result, this work is part of the IT Director’s existing job duties and is thus not eligible to be utilized in assessment of a “special service charge.”
Furthermore –
Emails are a common public record, and every public entity needs a mechanism to produce them in response to a public records request. If the school system chooses to house these records in a system that requires specialized software, then the cost of retrieval is the responsibility of the school.
We interpret your last message to mean that the 3 hours was spent converting the files from one format to another. We’re happy to receive the emails in their “native” original format, without any conversion, thus eliminating the need for that 3 hours of time. We did not ask for the records to be provided in any special format, and did not ask for a conversion to be performed. If the school chose to convert the files to another format to facilitate an internal review of the records, that is their decision and that cost should be borne by the agency itself.
Finally –
Your public records policy does not include any provisions that describe specifically how special service charges are calculated. As a result, it is inappropriate for you to arbitrarily assess a special service charge to this request.
Thank you.
~ The Sunshine Request Team
Status:
Clarification Requested
