Posted on July 12, 2010 by Charles Coble

N.C. General Assembly Amends Public Records Law

In the early morning hours of July 10, the North Carolina General Assembly closed the 2009 session by passing a bill that adopts two important changes to North Carolina's Public Records Act.  Both represent positive developments for government transparency in North Carolina.  These changes begin with Section 18.(a) of House Bill 961.

The first set of changes expands an exception to the "personnel file" exception to the Public Records Act.  The "personnel file" exception shields from public view certain documents relating to public employees in North Carolina.  By  expanding the "exception to the exception," the bill makes more information about public employees available. 

In particular, the prior version of the "personnel file" exception provided that among the information that remained a matter of public record notwithstanding the exception was each public employee's "date of most recent promotion, demotion, transfer, suspension, separation, or other change in position classification."  Certain public bodies maintained that this provision required them to disclose only a date to the public, without indicating what change occurred on that date.

Although that argument has twice been rejected by Superior Court judges in North Carolina, House Bill 961 eliminates this position once and for all.  The new language requires the following to be a matter of public record:

Date and type of each promotion, demotion, transfer, suspension, separation, or other change in position classification with that department, agency, institution, commission, or bureau.

The bill also adds two new provisions, which expand the range of information available about public employees:

Date and general description of the reasons for each promotion with that department, agency, institution, commission, or bureau.

Date and type of each dismissal, suspension, or demotion for disciplinary reasons taken by the department, agency, institution, commission, or bureau.  If the disciplinary action was a dismissal, a copy of the written notice of the final decision of the head of the department setting forth the specific acts or omissions that are the basis of the dismissal.

Although North Carolina still allows for substantially more secrecy concerning pubilc employees than a number of other states, these changes are a step in the right direction.

House Bill 961 also makes positive changes to the fee recovery provision of the Public Records Act.  Whereas the old version of the bill permitted judges to decline to award fees to a prevailing public records plaintiff if they found the agency acted "with substantial justification in denying access to the public records or [found that there were] circumstances that would make the award of attorneys' fees unjust."

The ratified language narrows the circumstances in which a prevailing plaintiff would not recover its fees.  In addition to putting in place a mechanism by which public records disputes could mediated prior to litigation, House Bill 961 amends G.S. 132-9 to read:

In any action brought pursuant to this section in which a party successfully compels the disclosure of public records, the court shall allow a party seeking disclosure of public records who substantially prevails to recover its reasonable attorneys' fees if attributed to those public records. The court may not assess attorneys' fees against the governmental body or governmental unit if the court finds that the governmental body or governmental unit acted in reasonable reliance on any of the following:

(1) A judgment or an order of a court applicable to the governmental unit or governmental body.

(2) The published opinion of an appellate court, an order of the North Carolina Business Court, or a final order of the Trial Division of the General Court of Justice.

(3) A written opinion, decision, or letter of the Attorney General.

By enhancing the ability of a prevailing plaintiff to recover its fees, the bill reduces a substantial deterrent to bringing public records lawsuits -- the costs involved.  The new fee recovery provision also puts a greater incentive in place for government agencies to comply with their public records obligations rather than resort to expensive litigation.  The new provision applies to lawsuits initiated after October 1, 2010.

Tags: , , ,
Posted on July 12, 2010 by Charles Coble

N.J. Supreme Court Applies Fair Report Privilege to Civil Filings

New Jersey's highest court has overturned an intermediate appellate decision that had refused to apply the "fair report" privilege to accounts of initial pleadings filed in civil lawsuits.  The Supreme Court's decision, issued in the case of Salzano v. North Jersey Media Group, Inc., represents an important victory for the press and the public.

We previously reported on the decision of the New Jersey Court of Appeals, which took a narrow view of the application of the fair report privilege.  The privilege is critical to reporting on official statements and actions by government actors.  It shields a media organization from liability if an official document, statement, or proceeding is given a fair and accurate account, even if the official source contains some factual error that someone contends is defamatory.  Without the privilege, journalists would expose themselves and their organizations to defamation claims merely by reporting what a criminal indictment or arrest report contained, for example, or by reporting what a judge said on the bench.  That risk of liability would force journalists to go behind their official sources and confirm the accuracy of the facts they provided, which would severely hamper reporting on government activities.

The intermediate appellate decision in the Salzano case was troubling because it refused to extend the fair report privilege to initial filings in civil cases.  This would have had the effect of chilling reporting on civil complaints, since reporters would face some risk of liability from defendants or third parties who claimed allegations contained in the complaint were defamatory.  The threat of such litigation could be used to deter reporting on important civil lawsuits, especially those in which the filing of the complaint itself was newsworthy.

In a sweeping decision, the New Jersey Supreme Court reversed, holding that a fair and accurate account of a civil complaint is indeed covered by the fair report privilege.  According to the Court, "there is a clear trend away from recognizing the initial pleadings exception" to the fair report privilege.

The Court went on to explain the strong rationale for rejecting such an exception as follows:

Indeed, the initial pleadings exception is at odds with the reality that the complaint is open to public view. . . . If the initial pleadings exception is retained, an anomalous result obtains: Public documents to which the citizens of our state have free access cannot be disseminated or reported on without risk of a lawsuit.

Because it is impossible for the citizenry to monitor all of the operations of our system of justice, we rely upon the press for vital information about such matters.  Members of the public simply cannot attend every single court case and cannot oversee every single paper filing, although clearly entitled to do so.  Thus, it is critical for the press to be able to report fairly and accurately on every aspect of the administration of justice, including the complaint and answer, without fear of having to defend a defamation case and without the inhibitory effect of such fear.

That interpretation of the privilege more fully advances the principles informing it than any other view.  Indeed, if a citizen presents himself at the local courthouse, there is no question but that he can see filed pleadings for himself.  They are not sanitized nor are they filtered through a veracity lens.  A full, fair, and accurate report of the contents of the pleadings, that is, what plaintiff claims and how defendant defends, places the citizen in the exact same position as if he were present on the scene.  From that perspective, interposing an artificial barrier between the citizen and a truthful and accurate report of what is actually occurring makes no sense.

. . .

In short, we are convinced that the public policy underpinning of the fair-report privilege -- advancement of the public's interest in the free flow of information about official actions -- would be thwarted by the recognition of the initial pleadings exception.  A full, fair, and accurate report regarding a public document that marks the commencement of a judicial proceeding deserves the protection of the privilege.

The Court then expessly adopted the majority view the fair report privilege is absolute -- once the reporter establishes that the report was fair and accurate, then the privilege attaches and cannot be overcome with a showing of malice.

In sum, the Salzano decision marks an important victory against efforts to limit the scope of the fair report privielge, a critical defense for reporters who report on government activity.

Tags: , , ,