Sunday, March 20, 2005

The presumption of openness in North Carolina

At IsThatLegal I've reported on historian Dan Carter's disheartening speech on the federal clampdown on the free flow of public records. Here I want to focus in on the North Carolina story that came out on the same day, yesterday, ironically just as "National Sunshine Week" had ended.

A number of North Carolina cities, the story says, joined by UNC and with the support of the N.C. League of Municipalities, want the legislature to overturn sound and settled law.

The North Carolina law of public records and open meetings employs a presumption of openness. "By enacting the Public Records Law, 'the legislature intended to provide that, as a general rule, the public would have liberal access to public records,'" the N.C. Supreme Court said in 1992 (N&O v. Poole, 1992). "It is the policy of this State, as announced by the General Assembly, to conduct the public's business in public," the Court of Appeals said in Boney v. Burlington City Council in 2002.

Boney v. Burlington City Council was a case that the publisher of the Alamance News brought against the city alleging violations of both laws in the way it proceeded to discuss a pending land deal. Boney won that case, getting a ruling that said the city was obligated to disclose who owned the land in question, the location of the land, the purpose of the purchase--everything but the proposed purchase price. The court said that he should have a copy of the full minutes of the closed session, except for the excludable purchase price information.

Not long after, Boney & Burlington met up again--only this time, the city sued first. The city had held a closed session to discuss a pending litigation matter. The newspaper voiced its objection more than once. Rather than wait to be sued, the city filed a declaratory judgment action--forcing the paper into litigation. Although the trial court allowed the case to go forward (and found for the city), the Court of Appeals, citing precedent, interpreted both the public meetings and open records laws to hold that the city had no right to bring a declaratory judgment. The right to sue under these statutes belongs to persons only, the court said, for the following reason:

Allowing a governmental agency to bring a declaratory judgment action against someone who has not initiated litigation will have a chilling effect on the public, in essence eliminating the protection offered them under the statute by requiring them "'to defend civil actions they otherwise might not have commenced, . . . thus frustrating the Legislature's purpose of furthering the fundamental right of every person . . . to have prompt access to information in the possession of public agencies.'"

The city's appeal of this decision will be heard by the state Supreme Court on April 19. I sure hope the newspaper wins. I'm sorry that the League of Municipalities can't be content to let these good sensible laws work the way they're supposed to work: to ensure that the public's business is done in public.


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