Courts to Decide if Record Seekers Can Be Sued
The NC Supreme Court will hear oral arguments on April 19 in City of Burlington v. Boney Publishing, a case that will determine whether government entities have the right to preemptively sue newspapers and others seeking public information to block the release of public records.
The city of Burlington appealed a 2004 NC Court of Appeals decision in which Judge Wanda Bryant ruled that North Carolina’s public records and open government acts do not allow government entities to bring legal action against someone seeking access to a public record or meeting. The law only allows an individual seeking a public record or access to a public meeting the option of pursuing legal action to enforce the request, the court decided.
The case has mobilized a wide array of groups to stake out positions on both sides, and has raised fears among news organizations and open government advocates that state legislation could be in the works to restore the right of governments to sue citizens and the press to block the release of public records.
The NC League of Muncipalities has filed an amicus brief in support of the city of Burlington, said League attorney Andy Romanet on Monday.
‘“We are saying they should be able to go to court and get a declaratory action,’” he said. ‘“You can characterize that as suing; I don’t see it as suing because you’re just trying to find out if you’ve interpreted the law correctly.’”
Romanet said the League hasn’t determined if it will support state legislation to allow government entities to seek declaratory judgments, but it is supporting legislation to clarify the rules regarding whether lawyers should have to disclose notes on their work for government entities to opposing litigants.
‘“I do not know where we are on the declaratory judgment issue,’” Romanet said. ‘“Right now, the League may just wait to see what the Supreme Court decides.’”
In a March 15 letter to publishers and editors across the state, NC Press Association President Jennie Lambert warned about so-called ‘secrecy legislation’ in the works at the General Assembly. Lambert is the publisher of The Star in Shelby.
‘“The University of North Carolina is at work on a number of pieces of secrecy legislation which, among other things, would restore the right of government agencies to sue citizens and the press when they make FOI requests, would make secret preliminary drafts, university preliminary research data, university donor identities, and university email lists,’” she wrote. ‘“NCPA will oppose any such legislation if it is introduced.’”
Leslie Winner, a lawyer for UNC, denied that the university’s board of governors is backing any legislation to give governments the right to sue public information seekers. She acknowledged that UNC is requesting legislation to keep donor lists confidential, and keep university research confidential until the author has the opportunity to publish it or until intellectual property rights law is developed to protect it from copyright infringement. She said UNC belongs to a coalition of organizations backing legislation to protect public entities from having to release full e-mail lists. She said the intent of the legislation is to prevent spam, not keep employees’ contact information secret.
Lambert could not be reached at The Star or at her home in Shelby on Monday to discuss the source of the information in her letter.
Among the supporters of Boney Publishing is John Hood, president of the Raleigh-based public policy organization the John Locke Foundation.
‘“We do have significant concerns about any additional power being given to local governments to shield their activities from the public,’” Hood said. ‘“If you would simply like to get a legal opinion, say ‘no’ and let the newspaper sue. They [also] frequently call the Institute of Government in Chapel Hill for advice. I don’t think the cities and counties lack access to legal advice. Arguably, those seeking access to records need legal resources.
‘“If the automatic response is ‘here’s a lawsuit which you have to defend, and it may cost you money,’ then it may be a deterrent to you requesting information,’” he added.
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