N.C. Open Government

Historical Analysis

Historical view of state’s public records may hint at clearing skies
by Dale Harrison

Prospects for sunshine in North Carolina are rather bleak according to The Citizen Access Project – rather “cloudy,” in fact. The CAP ranks the nation’s states by degree of statutory access to public records, classifying each in terms of a weather forecast. The highest rankings would earn a “sunny” or “mostly sunny” outlook, but none did.

Most states were cast as “cloudy,” including North Carolina. But 20 states earned the brighter outlook of “partly cloudy” and two earned “sunny with clouds,” which was the best ranking among the states. North Carolina was just plain “cloudy” and fell somewhere below the middle of the pack – which is a recurring rank for the state in studies exploring different aspects of sunshine laws.

Where North Carolina stands in terms of access as compared to other states at a particular point is important – but the more pressing question is the weather that lies on the horizon for the state. Is the sky beginning to clear a bit or are clouds growing darker and more ominous? To develop a more long-term forecast, the weather patterns of the distant past as well as recent trends need to be explored.

The CAP weather typology also includes “nearly dark” and “dark.” Fortunately, no state currently falls in these categories. Historically, however, access to public records surely started under dark skies. In an article for North Carolina Law Review, Thomas H. Moore recounts the 1886 public records case of attorney Z.B. Newton, who wanted a year’s worth of records from land sales in Cumberland County.

At the time, North Carolina’s common law provided no access for Newton. Worse yet, the N.C. Supreme Court denied Newton’s appeal on the grounds he had no “special interest” in obtaining the information. This stands in stark contrast to today’s Public Records Law, which prohibits government from merely inquiring about the purpose of a records request.

Then in 1935, North Carolina’s first Public Records Law made clear that anyone could inspect government records. Exactly four decades later in 1975, North Carolina caught a wave of greater openness among the states in the years that followed the formidable wake of the 1966 federal Freedom of Information Act.

Certainly, from a broad historical perspective, the weather has gotten progressively better. But that’s probably true of all states. Recent weather patterns are likely to provide a more reliable forecast.

Major developments in North Carolina’s access laws over the last couple decades may give rise to hope for clearer skies (despite a noticeable darkening at the federal level).

When the state legislature amended the Public Records Law in 1995, it formally departed from the philosophy found in the first statute 60 years earlier. The initial law, as Moore writes, “seemed designed more to benefit government officials than the general public.” In fact, the original name of the proposed law prior to passage was “A Bill To Safeguard Public Records.” But in 1995, the legislature went as far as to declare records the people’s property:

“The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people. Therefore, it is the policy of this state that the people may obtain copies of their public records and public information …”

While recent developments suggest the skies are probably clearer overall, there has been plenty of volatile weather – even twisters. The legislature’s 2003 move to make billing records of public utilities confidential brought a backlash spurred on by the drought. Attorneys have countered with some success in court that closure of the records does not include records of water ordinance violations.

Raleigh attorney Amanda Martin cites statutory language on salaries as among the most significant changes in the last year. New language makes available all information about the pay of public employees, which explicitly includes “pay, benefits, incentives, bonuses, and … all other forms of compensation …”

The changes in salary language were swept to the forefront of access issues by press inquiries into the pending benefits of state Rep. Thomas Wright, who is under the cloud of a fraud investigation. To date, prevailing winds have been in favor of access. State Attorney General Roy Cooper issued an opinion in February that helps open pensions to public scrutiny.

Only time will tell, but the 2005 amendment to the N.C. Public Records Law that requires judges to award attorney fees to prevailing parties may have one of the biggest impacts on the state’s law in its 73-year history. Prior to the change, judges rarely awarded fees, and there was little deterrent to break the law. Now, government agencies will likely lose big bucks if they refuse to release a record and lose in court. Moreover, individual public employees can be forced to pay fees if a court determines they intentionally violated the Public Records Law.

It could prove to be an effective double deterrent. First, it will likely cause individual public employees to be more wary – and thus more knowledgeable – of the law. Arbitrary denials of records requests should become less common. Second, government agencies are likely to take a long pause before deciding to fight it out in court.

While the history of public records in North Carolina is surely mixed, overall trends are more promising for the most part. The cultural climate may also be improving. The frequency of inquiries to the Sunshine Center suggests that professionals and ordinary citizens are vigilant about their right to access the state’s records. With the law itself now holding public officials more accountable and a public becoming more vigilant, the forecast for access in North Carolina may be getting brighter indeed.