Columns » Bob Burtman

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Government documents have been used for decades to expose questionable activities by public officials. Public records have leveraged freedom for innocent inmates, secured indictments against corrupt politicians, revealed mismanagement and misuse of tax dollars, and generally provided a check against those in positions of power and authority who would otherwise violate the public trust with impunity. That citizens have a fundamental right to know how tax dollars are spent would seem a simple truth in a democratic society. Indeed, every state has passed open records and open meetings laws to ensure that the sun shines on the workings of government; the federal Freedom of Information Act offers access to records that most other nations conceal as a matter of course.

But simple truths are frequently offset by other, equally basic facts of life. The public's right to know is counterbalanced by a natural desire on the part of those in government to shield their activities from prying eyes. Sometimes this stems from a belief that privacy rights and other compelling interests such as national security or the protection of trade secrets trump the right to know. And sometimes, as the record consistently shows, our public servants just have something to hide. As a result, open records and meetings laws are subject to a host of exceptions carved out by elected officials for reasons both noble and ignoble.

As in all states, North Carolina's open records and meetings laws have their strengths and weaknesses. On the plus side, the state specifically includes electronic records (including e-mails) among those that must be available on request, which is not the case across the board. North Carolina ranks high in access to public school records. Any citizen can request documents in this state without having to divulge the reason for the request, whereas other states subject requestors to various limitations.

On the other hand, North Carolina's open government laws have significant flaws that have been habitually used to circumvent the public's right to know. The state provides no civil penalties for deliberately withholding records that should be accessible--compare that to 24 states that mandate fines against agencies or officials who violate the law. While Kansas requires records to be provided within three days of a request, North Carolina has no time limit beyond what might be considered reasonable--in the case of the massive Boeing and RJ Reynolds incentives deals, the state Department of Commerce measured reasonable in months, long after the deals were set in stone. Personnel records are almost entirely off limits to the public, including resumes and disciplinary files.

Again in contrast to more open states, North Carolina law does not require agencies or officials to state that they've withheld certain records when turning over files, regardless of the reason for doing so. This leaves only the option of suing for records someone suspects ought to be there, a long-shot and potentially expensive undertaking. With no penalties for withholding documents, this makes cleansing files of unsavory items before turning them over an attractive option for those who would prefer certain information to remain shrouded.

Another gaping hole: Private foundations and nonprofits have little obligation to release their records even if they are primarily funded with public money. Local examples include the N.C. Museum of Art Foundation, Downtown Durham Inc. and the Centennial Authority (which was the subject of an N&O lawsuit over financial records for the publicly owned RBC Center). Economic development agencies that funnel public money to private companies routinely invoke their legal immunity from records requests.

This may all seem rather abstract, but for journalists and other watchdogs, the law's weaknesses have very practical consequences. Legislative budget negotiations, which have been conducted in classic back-room fashion by a small group of power brokers, are off-limits to the public under the law. Moore County citizens had to sue to gain access to records that a judge ultimately agreed were public; the judge, however, refused to award the citizens' attorneys fees, leaving them holding a $30,000 bill for their efforts. News & Observer reporter Joe Neff's recent blockbuster investigation into the licensing of surgeons who have committed malpractice was hampered by a lack of access to crucial information. In Kitty Hawk, where the city ditched its in-house attorney in favor of a private firm, attorney's fees increased from $40,000 to $400,000--the city has yet to turn over records of the firm's bills despite a court order to do so.

In 1999, newspapers across North Carolina participated in an open records compliance audit that covered 89 of the state's 100 counties. The results: City and county officials rejected a third of all clearly legitimate requests for public documents, an outrageous and unacceptable indicator of official contempt for open government.

These and other examples spotlight the barriers citizens face when trying to obtain records that should be available to anyone. Rather than remedying the problems by toughening the law in favor of openness, however, the state legislature is on the verge of passing several bills that will erode the public's right to know.

Last year, Appeals Court Judge Wanda Bryant, a consistent champion of open government, ruled that the work product of government lawyers was not protected under the open records laws. Bryant's sweeping opinion threw municipal officials and their lawyers into a panic and spawned a concerted effort to overturn the decision via state legislation during the current session; the General Assembly passed a bill last week that would exempt communications and other documents between attorneys and their government clients from the open records law. A Senate amendment that would guarantee attorneys fees to those who win open records suits was beaten back in a House committee and ultimately killed.

Protecting attorney-client privilege may seem quite reasonable, especially where pending litigation is concerned, but governmental bodies have long abused the privilege claim to maintain secrecy when there should have been light--Kitty Hawk is trying to keep its apparently bloated legal fees secret with a bogus privilege claim, and similar excuses are often tendered in response to valid requests for public documents.

Other bills introduced at the behest of UNC system and municipal officials would have limited access to several classes of records currently available to scrutiny, including unpublished research, donor information and select information on government employees. The most odious of them have been successfully parried, according to North Carolina Press Association lobbyist John Bussian, but some new restrictions remain. "We're still under siege, but we've fought our way through the worst," Bussian says.

That the bills are being pushed by such progressive legislators as Sen. Dan Clodfelter of Charlotte and Orange County Rep. Joe Hackney is both surprising and disappointing. Hackney, who helped derail the fee-recovery amendment, says that the issue of fees is best left up to individual judges. But as attorney Hackney well knows, judges rarely award fees to successful open-records plaintiffs. Asked if that fact might deter citizens and smaller news organizations from pursuing open records actions they can ill afford to bring in the first place, Hackney countered, "I wouldn't expect to win a debate with a journalist on this issue." Furthermore, he said he didn't expect fair treatment from the Independent regarding his position, an odd sentiment given the paper's consistently glowing coverage of his work over the years.

The one effort this season to add heft to the open records law has met predictable resistance. A bill to open the details of incentives giveaways to public scrutiny is still on the table as this column goes to press, but the Commerce Depart-ment is fighting to keep it as weak as possible by delaying the reporting timetable and otherwise tampering with the trigger language. The idea, of course, is to prevent any inconvenient holdups before the deals are ratified. Claims that openness would hurt recruitment efforts are self-serving and phony--in Georgia, recruitment activities are open to the public from the outset and have been for 20 years, with no discernible injury to the state.

It would certainly be unfair to suggest that public officials who abrogate the public's right to know are intentionally subverting the public interest. But it's entirely within the real of fairness to assert that new exceptions to open records and open meetings laws can and will be used by unscrupulous public officials to their own ends, as they have always been. To argue otherwise is to deny human nature.

Supporters of the bills invariably say they stand behind the principles of open government and are only addressing narrow classes of information that don't serve any overriding public purpose. But like well-meaning folks of all political persuasions who would carve away "small" exceptions to the First Amendment guarantee of free speech, they fail to note the bigger picture: If enough exceptions exist, eventually the protections lose any practical meaning. That's what happened in Florida, long the supposed standard for strong open government laws. "Florida's law is written large but then amended out of existence and interpreted narrowly," says noted First Amendment and media attorney Hugh Stevens. "What used to be a very sweeping law has been nibbled to death by legislators."

"You can't just rush in and amend the law overnight to serve [particular] interests," says N&O executive editor Melanie Sill, who is helping organize the nascent North Carolina Open Government Coalition, which will try and increase public awareness about state law and the importance of open government. "The basic concept is that government belongs to the citizens and deserves sunshine."

Unfortunately, Sill's sentiments aren't universally shared by those who make the rules, nor are they likely to be in our lifetime. Perhaps, though, we will live to see the day when at least a majority of our official representatives act accordingly.

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