A bill that would require courts to award attorney’s fees to the press and citizens who win public-record lawsuits against the state aroused spirited debate during a House committee hearing Thursday.
John Bussian, legislative and First Amendment counsel for the North Carolina Press Association, told members of the House Judiciary 1 Committee that despite changes that government lawyers want, the legislation “is a good bill the way it’s presently worded” and that “no opposing words were given” in Senate committee hearings that had been conducted on the bill.
The first section of the measure, Senate Bill 856, would establish an exception in the state Public Records Law for trial preparation material. It would provide that a custodian of a public record that is also a trial preparation material may deny access to the record, whether or not a lawsuit has been filed. Any person denied access to a public record that is alleged to be a trial record may ask the court for a ruling. If the party seeking access is a party to the lawsuit, an action to determine access must be brought in the pending action. Otherwise, a person can bring a separate action for a judicial determination.
The custodian of trial preparation material that is also a public record must grant access to the material once the lawsuit is resolved, or when the applicable statute of limitations expires.
Section Two would amend the law establishing the process for gaining access to public records when access is denied, to require the court to award attorneys fees to the requesting party if the court determines that the governmental body unlawfully refused. This section also would require the court to assess reasonable attorneys fees against the party who initiates an action in bad faith or frivolously.
“This is a sea change in the North Carolina Public Records Law to keep government agencies from gaining an unfair advantage. If there is no consequence of withholding public records, the law becomes a vehicle for abuse,” Bussian said. “The press association urges the committee to support the bill in its present form.”
The NCPA would reluctantly accept Section One of the bill if the public and the press were automatically awarded attorneys fees if the plaintiffs win lawsuits over public records, Bussian said.
But Andy Romanet, general counsel of the N.C. League of Municipalities, said Section Two of the bill “is troubling to us.” He said the league represents 535 municipalities in North Carolina. “The people in these municipalities do the best job they can with the law. To penalize them if they make a mistake, that goes too far.” Romanet said the league would support a different version of the bill that allows judges to make decisions on the awarding of attorneys fees.
Jim Blackburn, a lawyer for the N.C. Association of County Commissioners, said the issue of trial material is not a question of “whether it becomes public, but of when it becomes public.”
“There is not a vast conspiracy out there to keep information from the public or the press,” he said.
The stronger bill is needed, Bussian said, because judges have shown in almost every case over the years that they will not award attorneys fees to the public or the media when they filed public records lawsuits against the government. “You can look all around the state at cases that have gone up on attorney fees, and judges will not award fees against the government,” he said.
Rep. John Blust, R-Guilford, agreed. “Sometimes requested records haven’t been turned over, or turned over until there’s a whole long period of time, knowing that the person requesting them doesn’t have the resources to take on the government,” he said. “I’d like to see some guarantee that a government entity can’t hold out and bleed the little guy who wants information. I have seen cases where it was almost ridiculous when attorneys fees weren’t awarded,” he said.
Rep. Joe Hackney, chairman of the committee, said the committee would defer a vote on the legislation and further study the measure.
Richard Wagner is editor of Carolina Journal.