A decision last year by a North Carolina appeals court judge preventing government lawyers from concealing much of their work prompted legislators to approve a new law this year that overrides that verdict.

But government lobbyists didn’t stop there. They introduced bills that would have allowed state and local agencies to withhold many forms of documentation that have historically been considered public information.

Panic set in during the middle of last year among lawyers in the North Carolina Bar Association’s administrative law, and government and public law, sections. The state Court of Appeals, in an opinion written by Judge Wanda Bryant, had decided unanimously that lawyers representing governments may not withhold so-called “work product” papers from public scrutiny.

The case focused on a private company in Raleigh, Hanson Aggregates Southeast, Inc., that had sought the release of all records that the city held relating to its property. A Raleigh zoning inspector had asked Hanson to stop using part of its land for excavation. The city’s lawyer, Thomas McCormick, pre-emptively sued the company after its records request, seeking a declaration from the court that said Hanson had no right to his materials.

After the appeals court decision, government lawyers immediately coalesced to criticize the ruling.

“With this decision, the court dealt a rough blow to the work product privilege,” wrote Mary Penny Thompson, a lawyer for the state Department of Environment and Natural Resources, in a June 2004 N.C. Bar Association newsletter.

Attorneys, in times before a trial, are allowed to protect their preparation materials as a rule. But lawyers for open government said allowing such a shield in public records cases would enable officials to operate secretly by using lawyer “work” privileges for cover, and by forestalling records requests through lawsuits.

“It’s kind of a license for a lawyer to hide from the public whatever he wants to hide,” said John Bussian, a lawyer for the North Carolina Press Association and for several media organizations. Bussian and Mark Prak, a lawyer for North Carolina broadcasters, represented Carolina Journal and the NCPA in a lawsuit against the state Department of Commerce over the agency’s failure to timely produce public records of the state’s incentives package for Dell Corp. That case was settled after department officials agreed to pay the plaintiffs’ attorneys fees.

Hindered by the Court of Appeals, government lawyers last year put together a proposed legislative remedy to restore what they considered their work privacy rights. A committee of the Bar Association’s Government and Public Sector section said responding to the McCormick decision was its “primary issue,” and set a quick deadline to come up with draft legislation.

Lawyers for local-government associations, including Greg Schwitzgebel of the N.C. League of Municipalities, also worked on the project. According to October 2004 meeting minutes of the Sector, “Council members discussed the need to ‘strike a balance’ in the legislation between the need for confidential attorney-client communication and the needs of the public.”

The finished product was a bill, sponsored by Sen. Daniel Clodfelter, D-Charlotte, that allowed government custodians of records to “deny access to a public record that is also a trial preparation record.” But the legislation provided great latitude for local officials, because it allowed them also to withhold public documents that might fall under an anticipated “legal proceeding that has not commenced.” Parties seeking records that are claimed to be under the litigation provision would be required to request their availability through the judge overseeing the case.

Lawyers for the NCPA, as a counterweight to the new proposed restrictions on records access, sought an amendment to the bill that would have automatically awarded attorneys’ fees to be paid by government agencies to citizens winning public records lawsuits. That change passed the full Senate, but a House Judiciary committee removed the automatic-fees provision before the bill passed the full chamber.

Current law leaves decisions about the awarding of fees to the discretion of a judge, but Bussian said that in almost all cases judges don’t allow the public or media to recover their legal expenses. He acknowledged that most other states allow government lawyers some level of secrecy to protect their work, but said that the automatic recovery of fees would have been a deterrent for lawyers to withhold documents unnecessarily.

“There was a very clear need, and still is a need, for the public to recover fees,” Bussian said.

The new law, signed by Gov. Mike Easley on Aug. 26, also strengthened the government’s right to recover its costs should a judge determine that a citizen or the media brought a public records lawsuit in bad faith or for frivolous reasons.

In addition to that setback, Bussian said government lawyers and their supportive legislators brought forth a barrage of other restrictions on public records access, some of which remain alive for next year’s short session of the General Assembly.

A simultaneous bill to the working-records legislation would have imposed further restrictions on access to records such as pre-published materials used for university research and studies, as well as financial donor information. The bill also included a litany of other document holdbacks, including information about government volunteers, private phone numbers of public agency employees, government e-mail lists, and draft documents of government employees that are not yet in their final form. A stripped-down version of the bill cleared the Senate, and it could see action in the House next year, where provisions could be added back in.

Another bill that didn’t survive, sponsored by Rep. Linda Coleman, D- Knightdale, would have enabled state department and agency heads to withhold employee information “that he or she believes is in the best interests of the health, safety, or security of the employee.” Coleman is a former state employee.

Bussian said the onslaught of legislation that could further restrict the public’s right to know what government is doing was excessive this year. He said he ranks North Carolina “in the bottom tier” of states in the level of government openness.

“As if it’s not bad enough,” he said, “we have to battle for what little we have.”

Paul Chesser is associate editor of Carolina Journal.