Sunday, June 01, 2008

NC Public Records Bill a good thing. I hope it passes

Even here in a small town, the local officials will "stone wall" efforts to obtain public records when requested. I know of one person who had to hire a lawyer to get information that was supposed to be public record. Under a newly proposed bill in the NC Legislature, local governments that illegally deny access to their public records would be required to pay the legal fees of those who request records. Good for State Sen. David Hoyle. Here is the full story.
Government agencies would be required to pay citizens' lawyer bills when they illegally deny access to public records, under a legislative proposal the sponsor says was spurred by several recent newspaper lawsuits.

The bill, introduced by Sen. David Hoyle, D-Gaston, would ensure citizens and groups receive money to cover their legal costs when they sue for access to public records under the state's open records law.

Hoyle, a longtime proponent of open government laws, said the measure would make government agencies think twice about denying access to public records.

"I think this may cause them to pause and say, 'Wait, why did I want this, and if I happen to lose in this situation, it could cost me some money,'" Hoyle said. "I think you'll see less litigation."

Many government organizations have opposed similar proposals in the past, citing fears that they will be hit with big legal bills for unintentionally blocking access to public records.

Current state law leaves legal fee awards up to a judge's discretion. That means courts can decide to award no money or part of the victors' legal tabs if it decides the agency had "substantial justification in denying access" or there were circumstances which would make awards "unjust."

The bill would make payment of "reasonable" legal fees, as determined by a judge, mandatory, Hoyle said.

The North Carolina Association of County Commissioners are inclined to support leaving the award decision up to a judge to prevent local governments from getting socked with hefty bills for unintentionally violating the law, spokesman Todd McGee said.

"Sometimes it could just be a situation where it could be an honest mistake or a lack of a person's understanding of the rules," McGee said.

But John Bussian, a lawyer and lobbyist for the North Carolina Press Association, said the prospect of paying large legal bills sometimes dissuades people from challenging access denials – even when they know the record they requested is a public record. He said he backs Hoyle's proposal because it will help ensure government openness.

"If a citizen or a member of the press has to wonder are they going to be able to recover what they invest to get the government to do what it's supposed to do, a lot of times the choice may be, 'We'll have to let this one go,'" Bussian said. "If they forego a lawsuit, well then, the government goes Scott-free."

The bill also would create the Open Government Unit, as a wing under the attorney general's office. The unit would function as a "sunshine" office, charged with issuing non-binding opinions about open records disputes before they entered the courtroom.

Hoyle said he was spurred by a number of cases where newspapers – including the Outer Banks Sentinel – endured protracted legal proceedings to access public records.

For three years, the Outer Banks Sentinel tangled with Kitty Hawk officials over access to records related to the town's legal fees. Local officials denied the paper the files, so the paper sued and won both in a lower court and the Court of Appeals.

The paper racked up about $135,000 in legal fees in the process, said Managing Editor Sandy Semans. A judge awarded the paper $75,000 for legal fees, while the law firm representing Kitty Hawk settled out-of-court for $20,000, Semans said, leaving the Sentinel to cover the rest.

"The fear of having to pay those kind of fees, even if you win, is certainly a detriment to pursuing open government situations," Semans said.

Hoyle pegged the legislation's chances as "better than even" but acknowledged that opponents have time on their side, as lawmakers are focused on passing the budget and adjourning quickly. Both the House and the Senate would have to approve the plan before it would head to Gov. Mike Easley for consideration.

If it does not pass this year, Hoyle said he will propose it again next year.

"You know, this is not high on a lot of people's radar screens," Hoyle said.

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