Bold words over press access

Following is the Public Editor column from Sunday, Aug. 17, 2008:

The News & Observer seems to be increasingly at odds with government these days over public records.

This month, the paper's lawyers protested when a state judge sealed records related to handling of drunken-driving charges in Johnston County. Before that, the fight was over access to search warrants in the murder case of Nancy Cooper, the Canadian-born Cary mom. In May and June, the paper sued for access to autopsy records in the Eve Carson murder case.

The N&O has been in an ongoing battle with Gov. Mike Easley over access to e-mail records and has sued to stop his administration from destroying e-mails. The latest skirmish came last month, after The N&O requested e-mails from six officials of the Department of Health and Human Services relating to the opening of the new Central Regional Hospital in Butner.

In a column Aug. 3, Executive Editor John Drescher complained that it took the department a month to respond to the request, including 11 days for the public information office to forward the request to the officials. Drescher called Easley's office "the worst administration in decades" in terms of open government, then issued this warning to the two major-party candidates who want to replace Easley:

If you are as obstructive as Easley, he told Patrick McCrory and Beverly Perdue, "We will fight you. We will sue you. We will report on your obstruction and law-breaking. And I will pound you in this column."

Strong words, and they drew strong reaction from readers:

"I am thrilled to see such fire in the belly of the executive editor of The News & Observer," wrote Winston Hooker of Cary. "As I have written before, I feel that the paper's highest mission is to be a watchdog of government and advocate for the public interests. Bravo!"

But also this, from Frank Schiermeier, who says he has been a longtime admirer of the paper's watchdog role. "And now along comes cowboy Drescher with his guns blazing. What I gathered from his ... diatribe is: To hell with professional investigative reporting. He is on a vendetta because people in state government are tweaking his arrogance by not asking how fast and how high to jump."

Drescher said that the column generated the most responses he has received as executive editor and that the vast majority were positive. "The point I was trying to make was I hope the next governor will not copy the Easley model," Drescher said. "And of course the whole point of the column is that we're going to fight for public information, and that's an important part of what we do."

Senior editor Steve Riley said that if The N&O seems more ornery, it's because the paper has increasingly run into stone walls from agencies and law enforcement officials. "This is getting to be a trend," he said. "People are trying to keep us from knowing anything and the public from knowing anything, in some cases within the law and in some cases outside the law."

In the hospital case, he said, it was absurd to take 11 days just to forward the request to the affected officials. "It doesn't take days to forward a request, it takes minutes," he said. He went on: "I don't expect them to respond to everything in a day. There is a test of reasonableness, but we don't feel they have met that."

I asked Dempsey Benton, the human services secretary, whether his department's response had been reasonable. He noted that the 11 days included weekend and holiday days and said it was necessary to arrange for patient security and privacy before forwarding the requests.

Benton said The N&O had submitted 17 other public records requests during the time frame (Drescher questions that), and he rejected the suggestion, in Drescher's column, that the department deliberately delayed responding until after the hospital opened: "That's absolutely untrue. We've been forthcoming with documents associated with Central Hospital for the last six months."

But Benton also said his public information office "took a couple of days longer than they should have trying to accommodate that request, but it was well-intentioned." And he acknowledged that there are lower-level officials in the bureaucracy who reflexively resist public records requests.

The broader battle over e-mail records is ongoing. The N&O's suit to stop destruction of e-mails is pending in court. In May, an advisory panel set up by Easley issued several recommendations for handling e-mail requests, including more training for state employees and a longer timeframe for storing messages. It did not, however, address the issue of employees deleting e-mails.

A member of the panel, retired journalist Ned Cline, said he was dismayed by the media's attitude in making a case for more access. "During our deliberations, it became apparent to me that members of the [N.C.] Press Association came across as incredibly arrogant, all-knowing and to some degree offensive in the way it went about making its presentation to us," said Cline, former managing editor of the Greensboro News and Record. He said the association demonstrated no willingness to compromise or seek a reasonable solution to the issue.

Rick Thames, editor of The Charlotte Observer and president of the press association, said he thought the approach was reasonable. "All we really asked was that they do follow the law, and I guess we were insistent on that," Thames said. He added: "There seemed to be a general lack of understanding about the Internet age among many members of the commission and about why e-mail is important to the workings of government."

Thames said he was pleased with where the panel ended up.

I am concerned, like The N&O editors, about the trend toward less openness. Prosecutors are asking judges to seal records that routinely, and by law, have been made public, and judges are complying. Government officials too often treat e-mail communication and electronic information as if it's their own, instead of the citizens'.

The press is serving its watchdog role in insisting that that information be readily accessible to the public. You and I should applaud The N&O for its willingness to unholster lawyers when public officials are recalcitrant.

At the same time, the press has to recognize that there is a "reasonableness test" on our own part in seeking public information. There is, unfortunately, a public perception of media arrogance that we don't need to feed unnecessarily. This is an institution of words, but there are times when we should let our actions speak louder.

The Public Editor can be reached at ted.vaden@newsobserver.com or by calling (919) 836-5700.