Attorney General Roy Cooper has asked a state judge to dismiss a lawsuit against embattled former Gov. Mike Easley and several top officials from his administration, arguing that because Easley is no longer in office, and others named in the suit no longer hold the jobs they did with Easley, they cannot be held liable for alleged violations of the state’s open records law.
The lawsuit, filed April 2008 in Wake County Superior Court by the John Locke Foundation (publishers of Carolina Journal), the News & Observer, the Fayetteville Observer, and several other media organizations, charged Easley with numerous violations of North Carolina’s Public Records Law. Among other things, the lawsuit asserts that Easley ordered executive branch employees to destroy or delete e-mails sent to and from the governor’s office, and that Easley admitted throwing away at least one piece of official correspondence from his Health and Human Services secretary.
The governor’s office said it was following guidelines for disposing of public records set by the Department of Cultural Resources, but the media organizations argued that those guidelines were illegal, too.
Not long after the lawsuit was filed, the parties began negotiating a settlement, and the court removed the case from its calendar. When Easley left office in January, it hadn’t been settled.
In a motion to dismiss the lawsuit, Cooper says the court has no jurisdiction because the defendants have changed jobs. He also claimed that the media organizations have no standing to sue, and that the controversy is moot because current Gov. Bev Perdue changed the policy controlling e-mails, aligning it with the law. Moreover, Cooper said, the people charged in the lawsuit cannot repeat their alleged crimes, so punishing them would serve no purpose.
Attorneys for the media organizations blasted Cooper. Noting that “North Carolina’s appellate courts repeatedly have admonished that the Public Records Law is to be construed liberally and the exceptions to it interpreted narrowly,” the attorneys found Cooper’s argument about standing odd, since the Public Records Law allows “any person” to sue if the government denies a records request.
Even if Easley is no longer governor, the brief continued, “The unlawful policies and practices may have ended, but their consequences linger on. Although the current Governor has instituted new policies, the e-mail messages and other public records that the defendants allegedly omitted or deleted from the State’s e-mail system and secreted in private e-mail accounts or stored on the hard drives of personal computers are still missing and unaccounted for.”
The media groups cite the precedent that would be set if Cooper’s arguments prevail. By encouraging public officials charged with violations of public records laws to go into a Four Corners delay, they could operate in the dark without facing legal consequences.
“Such a ruling,” the brief said, “whatever its putative basis, would emasculate the Public Records Law, fly in the face of its underlying public policy, and send the message to public servants that they may withhold, hide, or destroy public records with impunity so long as their actions are not brought to the attention of the courts during their time in office.”
Wake County Superior Court Judge Howard Manning has scheduled a hearing Thursday at 2 p.m. to hear the motion to dismiss the case.
Rick Henderson is managing editor of Carolina Journal.