The Waterkeeper Alliance, known for its role as an environmental watchdog over industrialized hog farming practices, has filed a complaint against the NC Department of Agriculture and Consumer Services for allegedly violating the state’s Public Records Act.
The dispute centers on whether the agency lawfully charged the alliance more than $2,000 to merely inspect public documents. The documents in question were related to potential flood damage from Hurricane Matthew on hog and poultry farms.
A department spokesperson could not be reached for comment, although it is common for agencies to refrain from speaking about ongoing litigation.
The issue dates back to earlier this year, when the alliance filed a public records request on Jan. 20. It asked to inspect “all communications” with the EPA, USDA, FEMA, and any state, city, county government ‘as part of the agriculture’s review, consultation of response to flooding of agricultural operations in North Carolina related to Hurricane Matthew,” which had occurred the previous October.
The alliance also asked to inspect related to the department’s emergency response, proposals and preparedness plans as they related to storm-related flooding of these operations. The group had planned to copy or scan the documents using its own portable equipment.
The group filed a similar request with the NC Department of Environmental Quality, which produced the records in March and allowed the group to inspect them without charging fees.
The records are of interest because when Hurricane Matthew brought historic floods to eastern North Carolina, there were concerns over the integrity of the area’s 3,000-plus hog waste lagoons. Agriculture Commissioner Steven Troxler has maintained no lagoons were breached, but advocates, some of whom flew over the area, said they observed floodwaters topping the brim of some structures.
On March 3, 2017, Tien Cheng, an attorney with the agriculture department, responded that it would require more than 250 hours to fill the request. Cheng estimated that at $18 an hour — the pay rate for a full-time administrative assistant — the alliance would be charged at least $4,000 to inspect the records. However, a week later, a different agriculture department attorney called the alliance and reversed course, saying the group could inspect the records for free.
Cheng went on to write agencies can charge a special service fee when a request requires extensive use of resources. But the term “extensive” has not been defined. And in 2013 and 2014, former Gov. Pat McCrory exploited that vague language to revise public records policy for eight state cabinet agencies. Designed to reduce the number of records requests, those revisions were emblematic of the tension between the McCrory administration and the media and law firms seeking information.
The NC Attorney General’s manual on public records specifically states that agencies cannot charge fees for inspecting records. Nor can agencies charge to remove confidential information from a public portion of a file.
By May of this year, the agriculture department had still not produced the records. Cheng told the alliance that he was “waiting for authorization” to release them. According to court documents, the department did not mention any special service fees would be assessed. In fact, Cheng later that month told the alliance he had assembled the documents on a thumb drive and asked where it should be mailed.
Then on June 7, the alliance received an invoice for $2,038 for about 117 hours of staff time, plus a thumb drive with more than 24,000 pages of documents — with more to come. These were provided “in good faith,” Cheng wrote to the alliance in an email, insinuating — not so subtly — that the group would pay the fee.
The Southern Environmental Law Center, representing the alliance, filed the civil complaint in Wake County on July 31. The complaint asks for all of the records to be provided for inspection — for free — plus the recovery of attorney’s fees.