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We make a point of highlighting citizens demanding transparency from their local government partly because the recognition sparks motivation for others to do the same in their localities. Today's guest blogger is David Forbes. David is a senior news reporter for the Asheville-based weekly Mountain Xpress, covering issues of politics, crime and transparency. Catch up with more of his work on Twitter @DavidForbes.
An open-records fight in the mountain city of Asheville over missing evidence has far larger implications: Can public officials simply ignore rules for transparent government?
Last spring, some big news erupted in my city. Usually, Asheville is known for our local beer, mountain vistas and artistic culture. But this notoriety was far less positive.
The Asheville Police Department evidence room had a problem: Large amounts of guns, drugs and money were missing. According to a partial audit, at least 115 items were gone from an evidence room that was in deep disarray.
This news rocked the city. Pending cases were dismissed or delayed. The State Bureau of Investigation swept in, sealing up the evidence room and launching an probe. At an Asheville City Council meeting, District Attorney Ron Moore publicly criticized the APD leadership. The city government shelled out $175,000 for a full audit, and the police chief resigned.
During local government elections later that year, many citizens questioned how much they could trust law enforcement.
The audit was completed early this year, and the public waited for the results. The audit was completed in January this year, but it wasn’t made public. As a local reporter, I figured that at least an executive summary detailing how many items were missing would be released. It wasn't.
In late January, after no response from multiple phone calls, I faxed an open-records request to the district attorney's office. We usually email requests, but according to his secretaries, Moore never checks his email. Neither Moore nor anyone in the DA's office replied.
North Carolina doesn't set a specific time limit for response to open-records requests, but it does require a reply “as promptly as possible.” Two months went by. During this time, we consulted with attorneys at the North Carolina Press Association. They're respected experts in open records and don't hesitate to tell reporters when a document is out of reach. But based on their analysis of the case, they determined that the records should be released.
Our state's open-records law specifically states, “The use of a public record in connection with a criminal investigation or the gathering of criminal intelligence shall not affect its status as a public record." That means documents like the audit — detailing what was and wasn't missing from the evidence room — are generally public, as they usually don't implicate a particular person, N.C. Press Association attorneys explained. Indeed, previous audits of the evidence room had been released to the public regularly.
So we sent another open-records request; our managing editor and publisher joined me in signing it.
Under the terms of the contract it signed with the company conducting the audit the city was due a redacted copy of the audit paid for with taxpayer money. But city officials haven't pressed for it. The city manager has said he's satisfied with Moore's handling of the case. A press association attorney later said the city's lack of action "demonstrates they are trying to artfully avoid the requirements of open records law," because they would then have to make the audit public.
Last month, Xpress discussed the issue with other local media outlets. In addition to continued reporting on the issue, representatives of nine of them signed a joint statement in April calling on Moore to release the documents.
"District Attorney Ron Moore's actions are not in compliance with either state law or the practices of transparent government that the people of Buncombe County deserve from their elected officials, especially those charged with upholding the law," the statement declared. "As members of the local media who believe in a free press and open government, we call on Moore to turn over the results of the evidence room audit and help restore public trust."
We also started a petition for interested members of the public to sign.
Last month, as pressure built, Moore did respond to some local media, now citing a short, blanket opinion from the state office of the courts that declares the documents not public record. The local-media alliance continues to press for the document's release and consider the options going forward, but public officials still show no particular hurry to release public records about an issue of basic confidence in their law enforcement.
What gives this case importance outside of our city is the precedent it sets.
As NCPA Attorney Mike Tadych put it when reviewing the case, "Certainly, with this record, you could find the copying machine in two months time." That lack of response on the part of a government agency charged with upholding the law has serious implications.
North Carolina's open-records law, like many around the country, recognizes that law enforcement may have a legitimate reason to keep some records private. But it's also supposed to ensure that normally public records shedding light on an agency's competence don't suddenly stop being public because they might be used in an investigation. As Tadych puts it, "Typically an audit doesn't point fingers, it just says 'this doesn't reconcile.'"
That's why what's happening in our corner of the world bears watching by any open-government advocate. Precedents, good and bad, are set by cases exactly like this.
Photo credit: Jonathan Welch and Max Cooper
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