In 2003, a handful of citizens of the golfing village of Whispering Pines, N.C., sought access to some basic public records: fire department rosters, salaries of police officers, complaints about boating violations.
The residents claimed that the village (formerly a country club until it incorporated) wasn’t providing adequate notice of public meetings, wasn’t keeping official minutes of meetings and wasn’t following proper procedures in hiring. A judge recently agreed, but refused to order the village to reimburse the legal fees incurred by the residents in their fight to raise the daily business of Whispering Pines above a whisper.
The decision disappointed one of the plaintiffs. “Citizens won’t avail themselves of their rights when the courts repeatedly refuse to award attorney fees,” Joe Stout told The News & Observer of Raleigh. “The [state] sunshine laws will be useless.”
Pretty soon they may be nonexistent.
An effort to limit citizen access to public records is advancing to the state’s high court, and there’s talk of a possible legislative effort to restrict the public’s right to request information. The next time a North Carolinian confronts a local government official about “the public’s right to know,” the response may just be, “Well, sue us — and pay for it yourself!”
Even worse, North Carolina municipal governments, the University of North Carolina, and other public agencies are all considering a request to the state legislature to allow pre-emptive lawsuits against citizens, news organizations and others who request access to public information, reports Matthew Eisley of the News & Observer.
Ellis Hankins, executive director of North Carolina’s League of Municipalities concedes that “We need to have open government,” but, he said, “governments need to operate.” And all those pesky requests from citizens seeking information from civil servants are just time-consuming and non-productive.
Opponents of the plan include news organizations and civil rights advocates across the political spectrum, who say it would “intimidate and punish inquisitive citizens,” writes Eisley:
They also argue that such lawsuits penalize citizens for exercising their First Amendment constitutional rights to criticize the government and to ask it to address their concerns.
“Imagine that your daughter is part of a new busing plan, and you go and ask for a copy of the plan,” said Raleigh media lawyer Amanda Martin. “They say, ‘You can’t have it — and we’re going to sue you for asking.’ “
On April 19, the North Carolina Supreme Court is scheduled to hear the appeal of Alamance News publisher Tom Boney, who had challenged the closing of a Burlington, N.C., city council meeting in 2002. He threatened to sue for access to the minutes. Burlington beat him to the punch; it sued him. If Boney wanted the information, he had to underwrite all the legal costs — his own and the city’s — to get the information.
Burlington lost last year before a state appeals court, which ruled that allowing the government to file pre-emptive lawsuits would create “a chilling effect on the public.”
Eisley writes:
The court also ruled that requiring members of the public to defend the lawsuits in lengthy court actions would undermine “the fundamental right of every person to have prompt access to information in the possession of public agencies.”
And such lawsuits, the appeals court suggested, would violate the aim of state sunshine laws “of promoting openness in the daily workings of public bodies.”
At present, any government agency in North Carolina can ask the state attorney general for an advisory opinion on the legitimacy of an information request.
Arguing on behalf of publisher Tom Boney and his battle with the city of Burlington, Raleigh attorney Hugh Stevens recently observed: “It is simply wrong for a public body to use the blunt club of the judicial system to silence and intimidate those who disagree.”
Tip to North Carolina officials: Government isn’t run for the convenience of a few cantankerous or lazy file clerks or town secretaries. It’s run for the citizenry. And nothing good can come out of an effort to limit the public’s access to public records.
–Susan Q. Stranahan
Susan Q. Stranahan wrote for CJR.