From the Asheville Citizen-Times (4/9/09): A bill introduced in the North Carolina House would represent, if it passes, a big step toward more open government.
The News & Observer reported that the legislation would make it easier for people who are forced to sue to obtain public records to recover attorney’s fees.
The legislation is similar to a measure that won unanimous approval from the state Senate last year but was stymied by House Speaker Joe Hackney, D-Orange County.
Hackney’s opposition last year was his opinion that the measure would remove all discretion from judges ruling on such cases. Hackney told the N&O that he felt last year’s bill would force governments to pay legal fees even if only a tiny fraction of documents requested in a public records suit turned out to be a record that should be released.
This year’s bill clarifies that point. Based on similar legislation in Texas, the bill would give judges leeway in deciding whether a person who has filed a lawsuit for public records “substantially prevails,’’ which would mean legal fees would be recouped.
That’s important, as lawyer John Bussian, a lobbyist for the North Carolina Press Association, points out for an obvious reason: There are very few citizens who have the financial means to launch a lawsuit. Because of that, the threshold for public officials who want to hold back public records for whatever reason is very, very low.
Why bother to disclose a public record when there’s very little risk in not doing so?
The bill also includes a measure we consider quite smart: The creation, within the Department of Justice, of an Open Government Unit. That group would be tasked with making sure public officials understand public record laws; perhaps more importantly, it would serve as a mediator on open records and open meetings controversies that, ideally, would help curb the need for such lawsuits to be initiated.
We’ve said it before, but it bears repeating: Public records are the public’s business. We pay the salaries of public officials, pay for the creation of such records, and such records are our business. That’s why they’re called “public’’ records in the first place.
The bill contains some necessary caveats; a judge couldn’t order fees, for example, if a government entity was withholding records based on an opinion issued by the attorney general.
If this isn’t a good measure, it’s certainly a good starting point. It appears to be drawing opposition in some corners, such as the N.C. League of Municipalities. The concerns of that body should be addressed, and a measure should be put together and passed that serves the main party of interest in this matter.
That would be the citizens of the state of North Carolina.
Asheville Citizen-Times Staff Editorial