What part of "public" don't we understand?
This past year since Sunshine Week 2008 has been a reminder that some need to be reminded of the word “public” in public records.
The record is clear. State law is utterly unambiguous:
“The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people.”
The American public takes its property quite seriously. To be denied what we rightfully own is cause for great consternation. Yet across the state, we are routinely denied our property by “public” officials who seem to be subscribing to an outlaw philosophy that,
“Possession is nine-tenths of the law.”
It’s not. The law is explicit: “The public official in charge of an office having public records shall be the custodian thereof.”
The “custodian thereof” — not the owner thereof.
For state officials to treat the public as a nuisance when it requests its own property is unconscionable. Nevertheless, this is what happens continually from the high peaks of Western Carolina to the lowlands of the Carolina Coast.
What part of “public” do “public officials” not understand?
Public servants in all forms routinely deny records to their rightful owners, from sheriffs to animal shelter directors, from fire chiefs to city and county attorneys, and so on.
What would result if other custodians routinely denied us our property? If a customer shows up at a bank to withdraw some cash, and she is stonewalled or treated as a nuisance, she would take her money elsewhere. The bank stands to lose.
But public officials in North Carolina know better: There is nothing to lose by denying citizens their records except the public trust, a clear conscience, and a sense of public service – which, sadly, matter too little to too many state officials.
It’s time for a change. If public officials can’t do the right thing for its own sake, the law needs to respond.
There was a prime opportunity in the past year to remedy the greatest obstacle to transparency in North Carolina government: providing a tangible incentive to public officials to honor the Public Records Law.
The Open Government Act was passed by the N.C. Senate in last year’s session and delivered to the House. But just like a rogue public official stonewalls a public records request, the House mercilessly killed the bill, a move orchestrated by House Speaker Joe Hackney.
The act would have strengthened the Public Records Law in two significant ways, perhaps the most notable of which was providing automatic recovery of attorneys fees for citizens who sue for wrongful denial of their public records property. State agencies and servants would have been provided the incentive they need to honor the law: their pocketbooks.
This would have been the second time in the last few years that the state legislature attempted to strengthen this portion of the law. Public officials and judges didn’t get the message the first time in 2005. With few exceptions, judges in the state have not had the courage to make government pay when it breaks the law.
The act also would have provided a mediation mechanism to resolve public records disputes before they become lawsuits. It is odd, indeed, that current state law provides only for mediation of disputes over the cost of public records through the state’s PIO chief, but not mediation for wrongful denials.
Arguments against the slain act have been feeble, at best.
In July of last year, Hackney claimed there just wasn’t enough time in the last session to pass the act. Instead, he referred it to committee to carry out the act’s death sentence.
However in January, Hackney indicated he is interested in a bill that provides for some version of automatic recovery of attorneys fees.
“He just wants to make sure the fees are reasonable,” said Bill Holmes, a Hackney spokesman, as reported in The News & Observer. The paper also reported that Hackney wants to be sure judges retain discretion in awarding attorneys fees.
But that discretion is precisely the problem with the current law. The new law is intended to remedy the failure of judges to award fees when warranted.
And quite frankly, this isn’t Hackney’s call. The Senate made its wishes clear by passing the act last year, and the House should have the same opportunity – regardless what the speaker thinks.
The chief argument against automatic recovery of fees has pointed to the absence of a reciprocal provision in the new law to require that citizens pay attorneys fees when warranted.
But there are two fundamental problems with that position. First, citizens already pay the attorneys fees of state agencies through their tax dollars. Second, the law already provides for citizens to pay the attorneys fees of state agencies if a lawsuit is filed “in bad faith or was frivolous.”
It is time to revisit the Open Government Act – and not having time is no longer an excuse.
Further, it is time for public servants who are serving something other than the public to take note of the word “public” in public official — and in public records.
By Dale Harrison, assistant director of the Sunshine Center at Elon University and professor of journalism in the School of Communications.