N.C. cities want to sue over public records requests

RALEIGH, N.C. - North Carolina cities and other government agencies are pursuing the authority to sue citizens who ask to see public records.

Lawyers for local governments and the University of North Carolina are talking about pushing for a new state law allowing pre-emptive lawsuits against citizens, news organizations and private companies to clarify the law when there is a dispute about providing records or opening meetings.

On another front, the city of Burlington is appealing a ruling last year by the state Court of Appeals that said the government can't take people to court to try to block their access to records or meetings.

Citizens can sue the government over records, the court said, but not the reverse. The state Supreme Court takes up that case next month and is expected to settle the issue.

North Carolinas League of Municipalities supports Burlington.

"It makes sense to ask a court what the law is when there's a dispute about the Open Meetings Law, just like when there's a dispute about anything else," said Ellis Hankins, the league's executive director.

"We need to have open government," he said. "But governments need to operate. And there are unanswered legal questions."

The cities say they want to use an ordinary tool often deployed in other kinds of legal disputes, called a "declaratory judgment," to let judges settle disagreements about public access to records or meetings.

Urging the Supreme Court to forbid pre-emptive government lawsuits are news organizations and civil rights advocates on the political left, right and center.

They include the state's newspapers and broadcasters, the conservative John Locke Foundation, and the liberal American Civil Liberties Union of North Carolina.

Many say they will also oppose any legislation that would give the government that power, saying it would intimidate and punish inquisitive citizens. They say pre-emptive access lawsuits are undemocratic and contrary to the state's policy of open government.

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.'"

In the Burlington case, Alamance News publisher Tom Boney had challenged the closing of a city council meeting to the public in 2002. Boney asked the city to disavow the secrecy and release minutes of the meeting. And he said he might sue.

Burlington beat Boney to it.

At the time, no state statute or court ruling prevented the city from doing that.

The city's lawsuit against the newspaper required Boney to spend money defending it. The lawsuit also asked the judge to make Boney pay the city's lawyer.

"A government body should not be permitted to bully citizens who object to its actions or who argue for an interpretation of the law that differs from the position taken by the public body," the newspaper's attorney, Raleigh media lawyer Hugh Stevens, said in a recent court filing. "It is simply wrong for a public body to use the blunt club of the judicial system to silence and intimidate those who disagree."

Part of the problem is that state law provides no mechanism for cities to get a court ruling in a dispute over access to records or meetings other than to sue the people or companies seeking the information _ unless the requesters sue first. In some other states, cities can sue the state attorney general to get a ruling.

In filings with the N.C. Supreme Court, Burlington and North Carolinas other cities say they must be free to sue requesters for declaratory judgment to resolve disputes.

In its ruling against Burlington last year, a Court of Appeals panel of three judges concluded that allowing the government to file pre-emptive access lawsuits would create "a chilling effect on the public."

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."

The Supreme Court is scheduled to hear the case April 19.

Information from: The News & Observer,

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