(This story is by By Sandy Semans, Special to the Sunshine Center) This General Assembly's legislative actions pertaining to open government ended up amounting to lots of noise, but few finished symphonies. The Open Government Act was reintroduced this year, but again stalled before approval.
The only bill to make its way to the governor’s desk for a July 17 signature was one to increase transparency in specific state health facilities. (Transparency in State Health Facilities, Senate Bill 799, Ratified)
Open Government bill
Last year, an attempt was made to pass legislation that would have created an Open Government Unit in the Attorney General’s office tasked with mediating open government disputes. It mandated that judges award attorney fees to the prevailing party in successful attempts to wrestle public records away from those who would withhold them. It sailed through the Senate only to be stopped cold in the House.
This year, several similar bills were introduced. All had components that are sorely needed, but the one that gained support was an amended version of last year’s stalled attempt. This time, the bill made it through the House but, because apparently no one asked the chairman of the Senate Judiciary Committee for a hearing, the session adjourned without the bill moving forward on the Senate side. (Open Government Act, House Bill 1134, Pending)
It will be taken up again in the fall session and hopefully will be changed to correct some problems. Also, it is hoped, attempts by the League of Municipalities and Association of County Commissioners to insert language that would also allow government agencies to recover their legal fees if they prevail can be held at bay.
Although it may seem fair on the surface for taxpayers’ money to be recovered in such instances, facing such a possibility would discourage all but those with very deep pockets from pursuing these cases. It is difficult for most members of the public to commit to spend money to go to court and take the chance of not recovering their own attorney fees. So if the possibility of also having to pay the other side’s fees is added into the equation, no doubt, it would substantially decrease the court challenges.
The problems with the bill as written include the fact that it does not pertain to open meetings. The original language written last year was supposed to include both open records and open meetings but through a glitch, the latter was not inserted into the bill when it was filed. Many of the cases that end up in the court are a combination of violations of both types of laws. So by including just the open records portion, it leaves the door open for a judge to use discretion on a portion of the fees.
Also of concern is language inserted this year that states there is no automatic recovery if the public body relied on a judgment or an order of a court applicable to a governmental unit or governmental body; the published opinion of an appellate court; or a written opinion, decision, or letter of the Attorney General.
This is troubling for a number of reasons, one of which is that the Attorney General’s office is a political body and, while writing an opinion, may very well be involved in defending the State in a case that is related and/or reflective of the same issue. Thus, there potentially is a conflict of interest.
Lower and appellate court decisions are frequently overturned over time. To punish someone who wins a case that trumps an earlier court action by withholding attorney fees is not defensible. Such cases are not infrequent and have resolved a long list of issues including discrimination and women’s rights.
Required recording of closed sessions
One bill that received little attention but could have had tremendous positive impact would have amended the current open meetings law by requiring the audio or video recording of closed sessions. It would have applied only to municipalities or counties with populations of 50,000 or more, and the tapes would come under the same provisions as written minutes. Currently, Hyde County is the only local government in the state required to tape closed sessions. This was accomplished through a court order, which resulted from an open meetings lawsuit decided several years ago. (Keep Recordings of Closed Sessions, House Bill 1263, Pending)
Transparency in employment recommendations
Another bill that died a quiet death in committees was filed in both the House and the Senate. The bill, if it had become law, would make public record any communication by a public official either recommending or discouraging the employment or appointment of an individual for a state government position.
Public notices and newspapers
One of the most contentious debates this past session was over posting public notices on agency Web sites – instead of publishing them in newspapers. Thus far, over the past two years, only a handful of municipalities have gained approval to remove their notices from print, but, no doubt, there eventually will be an attempt to take it statewide. The problems with this concept are many. How do you prove when a notice was posted on a Web site? How do you provide an affidavit of publication? How do you know the notice wasn’t changed at some point while on the Web? How many in the community visit agency Web sites on a regular basis and how many in the community don’t have the capability to do so?
Another point that many newspapers don’t want to discuss publicly is the economic impact. At the end of the day, newspaper businesses add up to a sizable industry, and during the current economic times, have had to shrink their employment rolls. Delivery people, print operators, sales teams, content writers, etc., live and spend money in their communities. Losing revenue from any source at this time will further erode the foundation under these publications. Their loss is also the loss of the community in economic terms as well as what is a primary source for local news and fact-finding. Consideration needs to be given to this just as it would be if the industry were Dupont or Google.
Sandy Semans is managing editor of the Outer Banks Sentinel. This legislative roundup was first delivered as part of a speech to a gathering of Rotary Club members after the close of the legislative session.