N.C. Public Records Case Opens up Access to Agency Database

The North Carolina Court of Appeals recently decided a landmark case for public records law in the state. In that case, the panel of three appellate judges determined that the Automated Criminal/Infraction System (“ACIS”) database is subject to public disclosure under the North Carolina Public Records Act.

The North Carolina ACIS database is a database of criminal records compiled in real time maintained by the Administrative Office of the Courts (the “AOC”) for the clerks of superior court across the state. The database contains real-time criminal records entered by clerks in all 100 counties in North Carolina. In 2011, a group of news organizations and information aggregators (including Lexis) sued official representatives of the AOC and the Wake County Superior Court to demand disclosure of an index of the ACIS database. A lower court ruled in favor of the government and denied disclosure, and the plaintiffs appealed.

On appeal, the North Carolina Court of Appeals reversed the lower court and unanimously held that the database qualified as a public record maintained by the AOC that must be disclosed to the public. The decision is a win for newsgathering organizations.

The court concluded that the ACIS database is an electronic data-processing record and a compilation of individual county records. The ACIS database compiles and maintains each county’s individual records entered into a centralized database. The parties did not dispute that individual clerks of court could provide the criminal records for his or her county in response to a request, but the clerks could not provide the records from any other counties or make a copy of the entire ACIS database.

The AOC created, maintains, and controls the ACIS database and is the only entity with the ability to copy the database. Thus, according to the court’s opinion, the AOC, as the custodian of the ACIS database itself, is therefore responsible for providing copies of the ACIS records.

The case is an important precedent for the notion that electronic databases that compile and index public records are subject to disclosure by the agency that maintains the database—in addition to the individual public records held in such databases. According to the court, each database, itself, is a public record. The court concluded that while clerks maintain county criminal records, the ACIS database itself is a distinct public record of the AOC and in the agency’s custody. The AOC is therefore responsible for providing public access to the database under state public records law.

The court also reasoned that the fact that the information in an existing county record also exists in the electronic database does not relieve either agency of its obligation to disclose. So, an individual county clerk must still provide access to the public records in its custody, and a statewide entity in charge of a database must also separately provide access to the records in its custody. In other words, it does not matter if the records are duplicated in more than one location—each custodian has a unique obligation to provide access to public records that are within its control.
 

 

Supreme Court Rejects Constitutional Challenge to Virginia Public Records Law

In a unanimous decision authored by Justice Alito, the U.S. Supreme Court today turned away a constitutional challenge to residency requirement of the Virginia Freedom of Information Act.  As we previously reported, the Court granted certiorari in a case brought by non-Virginians challenging that requirement under the Privileges and Immunities Clause and the dormant Commerce Clause of the U.S. Constitution.  The Court's decision today affirmed a ruling by Fourth Circuit.

Under Section 2.2-3704(A) of the Virginia FOIA statute,

all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records.

Citizens of other states therefore do not have a general statutory right under the Act to access public records in Virginia.

The case was brought by citizens of Rhode Island and California.  One sought documents relating to a state agency's delay in filing a child support petition on his behalf.  His request was denied because he was not a Virginia citizen, though he later obtained most of the information he wanted from another agency.  The other petitioner operates a business that collects real estate tax records. His request for tax records from a particular county in Virginia was likewise denied because of his location.

The petitioners filed suit under Section 1983, contending that the residency requirement of the Virginia FOIA statute was unconstitutional.  The Court ultimately rejected those challenges.  With respect to the Privileges and Immunities Clause, the Court emphasized that its protection extends only to privileges and immunities that are "fundamental."  It went on to hold that the opportunity to pursue a business, the ability to own and transfer property, and the ability to access courts, while fundamental, were not abridged by the FOIA provision at issue.  As the Court held,

the [Privileges and Immunities] Clause does not require that a State tailor its every action to avoid any incidental effect on an out-of-state tradesman.

With respect to access to courts, the Court noted that all persons have access to judicial records in Virginia, as they do to information about himself or herself compiled by a Virginia agency. 

In addition, the Court held that access to public information, as a general matter, is not a fundamental matter protected by the Privileges and Immunities Clause.  The Court observed that it

has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws.

In the absence of a long-standing right to access government documents writ large--a statutory right the Court pointed out is of fairly recent vintage--states are not required place citizens and non-citizens on equal footing under their public records laws.

Finally, with respect to the petitioners' dormant Commerce Clause argument, the Court found that nothing about the residency requirement in the Virginia FOIA statute was driven by a desire for economic protectionism.  Thus, the act did not regulate or burden interstate commerce in violation of the dormant Commerce Clause.

The upshot of this ruling is that the agencies of government in Virginia may continue to deny public records requests made by out-of-state persons or companies.  This result may lead to businesses in Virginia that specialize in making requests for non-Virginians.  Such a service may be of particular importance to out-of-state media organizations.

Important N.C. Public Records Question Left Unanswered

The North Carolina Supreme Court last week split 3-3 on an appeal presenting important questions concerning the state’s Public Records Act, apparently leaving it for the General Assembly to close a gap in the law concerning the applicability of the records statute to campus police departments.

The case, Ochsner v. Elon University and North Carolina Attorney General Roy Cooper, presented, among other things, the question whether the campus police department of a private university is subject to the Public Records Act, where that department was certified and authorized pursuant to state law.

The Court of Appeals answered that question in the negative, affirming the trial court’s dismissal of a complaint brought by a reporter from Elon University’s campus television news program seeking access to a complete copy of an incident report generated by the campus police when it arrested a student in March 2010.  The campus police had refused to give the reporter the full incident report, instead turning over an arrest report and the first page of the incident report.

The Public Records Act, however, specifically makes public certain information concerning police investigations, including:

(1)  The time, date, location, and nature of a violation or apparent violation of the law reported to a public law enforcement agency.

(2)  The name, sex, age, address, employment, and alleged violation of law of a person arrested, charged, or indicted.

(3)  The circumstances surrounding an arrest, including the time and place of the arrest, whether the arrest involved resistance, possession or use of weapons, or pursuit, and a description of any items seized in connection with the arrest.

            It so happens that this was exactly what the reporter requested from the campus police, a request the department refused.

In affirming the trial court’s dismissal, the Court of Appeals had held that even though state law gives police departments operated by private universities the power to arrest, the Public Records Act does not cover those departments.  The North Carolina Supreme Court agreed to hear the case, but split evenly, 3-3.  Justice Barbara Jackson had recused herself because the reporter, Nick Ochsner, had worked on her re-election campaign.  The split leaves the Court of Appeals’ decision intact but without any precedential value for future courts.

The gap in the law identified by this case appears to be the result of changes in the law surrounding the certification of campus police departments that were not carried through to the Public Records Act.  More specifically, when the statute certifying campus police departments changed in 2005, the new statutory cite was not added to the list of what constitutes a “public law enforcement agency” under the Public Records Act.

With the Supreme Court deadlocked on this issue, a legislative fix has been proposed in the General Assembly.  House Bill 142 would amend the law authorizing campus police departments to expressly make public the same information concerning police investigations that is public under the Public Records Act.

Supreme Court Agrees to Review Virginia Records Law

Last week, the United States Supreme Court agreed to hear an important case involving Virginia's public records law.  The case, McBurney v. Young, involves a challenge to a provision of the state law that says that "public records shall be open to inspection and copying by any citizens of the Commonwealth . . . " (emphasis added).  In other words, citizens of another state need not apply.

A challenge to this provision limiting the availability of public records to Virginia citizens was brought by, among other plaintiffs, a citizen of Rhode Island who used to live in Virginia and had his divorce and child custody case litigated in Virginia.  When McBurney's ex-wife defaulted on her child support obligations, McBurney submitted a public records request to the state Division of Child Support Enforcement for certain documents relating to his family's case.  The department denied his request, citing, among other things, that he was not a Virginia citizen.

McBurney challenged this basis in federal court, asserting that limiting the scope of the law to Virginia citizens violated the Privileges and Immunities Clause of the U.S. Constitution. 

Meanwhile, a second plaintiff -- a California resident operating a tax assessment records business that relied on access to Virgina records -- had brought a separate case challenging the same provisions. This plaintiff also asserted a P & I claim, but added a "dormant" Commerce Clause claim, asserting that the law improperly burdened interstate commerce.

As to the P & I claims, the district court held that no fundamental right was at issue, and therefore the P & I Clause was not violated. As to the Commerce Clause, the district court denied the claim, holding that the statute does not "implicate principles of economic protectionism" and therefore is constitutional.

The United States Court of Appeals for the Fourth Circuit affirmed the district court's decision, and the plaintiffs sought Supreme Court review.

Seeking Supreme Court review is not without risk for media organizations.  After all, a ruling from the Supreme Court affirming the validity of Virginia's law might open the door to states across the country adding similar provisions to their public records laws, in hopes of limiting access.  Such a development would require out of state media organizations to ask a resident "proxy" to make a request on the organization's behalf.

We will keep you posted as the Supreme Court considers this case.

Court Rules in UNC Football Public Records Dispute

North Carolina Superior Court Judge Howard Manning recently ruled on the scope of protection for documents related to the highly-publicized investigation of irregularities in the University of North Carolina football program. The Court held that the majority of communications among attorneys are protected from disclosure, but that other categories of investigative documents must be disclosed as public records of a public agency. The Court also ruled that portions of former UNC football coach Butch Davis’ personal cell phone records must be disclosed.  The Court's rulings are available here and here, and a discussion of a subsequent order entered by the Court is linked here.

Background

As a general matter, the University must disclose its records as a state agency under North Carolina’s public records laws. The dispute in this case hinged on the applicability of certain exemptions from the public records laws for attorney-client privilege or protection arising from the federal law. For example, North Carolina law exempts attorney-client privileged communications and trial preparation materials from disclosure as public records. And as a matter of federal law, the Family Educational Rights and Privacy Act (FERPA) protects most student records from disclosure as public records. In this case, the parties disputed what documents related to the UNC football investigation would fall within these exemptions.

Here, the plaintiffs (media outlets including newspapers and broadcasters) sought disclosure of several categories of documents from the University in connection with the NCAA investigation into irregularities within the UNC football program. The categories included personal and business phone records, investigative documents, and information about mentors and tutors to the athletes. Ultimately, the Court allowed the production of many of these documents as public records, with a few important exceptions.

At earlier stages of the case, the Court determined that many documents are not protected by FERPA and are subject to disclosure under the public records laws. For example, the Court ruled that unredacted phone numbers on telephone bills for coaches’ cell phones provided by UNC—including phone numbers of UNC students—are not protected by FERPA and are a public record. The Court also ruled that parking tickets issued to 11 UNC football players are not education records and are not protected by FERPA. The University was required to produce those documents.

The Court’s earlier rulings also distinguished records (e.g., names, employment dates, and salaries) of tutors and mentors for UNC athletes based on whether the tutors and mentors were students themselves. Non-student tutors were treated by the Court as University personnel, and those records are not protected by FERPA. In contrast, active UNC students and graduate students that were employed as tutors or mentors for athletes are protected by FERPA. The University was not required to disclose the requested information about UNC student tutors and mentors.

Disclosure of Personal Phone Records

In perhaps the most anticipated portion of the case, the Court ruled that former UNC football coach Butch Davis was a public official and ordered him to disclose portions of his personal cell phone records. On August 22, 2012, Judge Manning signed an order requiring Davis to produce his personal cell phone records within 30 days. The order permits personal calls to be redacted from the records, but he ruled that information regarding University-related calls is a public record.

Judge Manning took care in his ruling to limit the protection for personal cell phones belonging to public officials. He observed that public officials “may not avoid public scrutiny. . . by using personal cell phones to conduct public business."

Disclosure of NCAA Materials

In a separate decision, Judge Manning determined the scope of protection for investigative and legal documents regarding the NCAA investigation into misconduct by UNC football coaches, players, agents, boosters, and tutors. The two primary categories of documents were (1) communications between UNC and its attorneys that may be privileged, and (2) documents submitted to NCAA in connection with its investigation.

Protected Communications and Preparation

In the first category of investigative documents, the Court ruled that certain broad categories of communications were protected from disclosure by attorney-client privilege, and that materials prepared in connection with the investigation were also protected from disclosure.

Under North Carolina public records law, written communications to a state agency are exempted from mandatory disclosure if they are:

made within the scope of the attorney-client relationship by any attorney-at-law serving such governmental body, concerning any claim against or on behalf of the governmental body or governmental entity for which the body acts, or concerning the prosecution, defense, settlement or litigation of any judicial action, or any administrative or other type of proceeding to which the governmental body is a party or by which it is or may be directly affected.

N.C. Gen. Stat. § 132-1.1(a). The law also exempts from disclosure “trial preparation material” that meets the following definition:

Any record, wherever located and in whatever form, that is trial preparation material within the meaning of [the North Carolina Rules of Civil Procedure], any comparable material prepared for any other legal proceeding, and any comparable material exchanged pursuant to a joint defense, joint prosecution, or joint interest agreement in connection with any pending or anticipated legal proceeding.

N.C. Gen. Stat. § 132.9.9(h)(2).

Here the Court concluded that the NCAA investigation was an administrative proceeding within the meaning of the North Carolina statutes, so attorney-client communications and trial preparation materials related to the investigation would be protected. Thus, communications from in-house UNC counsel, corporate counsel, or an outside law firm to the University are not public records and are exempt from disclosure. Similarly, communications from in-house UNC counsel to outside counsel are privileged and are exempt from disclosure. Communications prepared by UNC staff at the direction of in-house or outside counsel for submission to in-house or outside counsel in connection with the investigation are “trial preparation” materials and also exempt from disclosure. As a result of the Court’s findings, copies of recordings of interviews prepared in connection with the investigation will not be required to be disclosed.

Disclosure of Documents Submitted To The NCAA

Next, the Court considered whether documents submitted by the University to the NCAA in response to its investigation were protected from disclosure. The parties agreed that student-athlete information relating to academics are protected by FERPA and would not be disclosed. The parties disputed disclosure of information relating to the NCAA investigation into impermissible benefits to student athletes such as plane tickets, jewelry, clothing, shoes, automobiles, payments to cover parking tickets, monetary gifts, free meals, and so on.

The Court determined that such benefits are not academic and fall outside the scope of FERPA. Thus, the Court ruled that documents relating to investigations into impermissible benefits only (and not academic conduct) must be disclosed. This category of documents includes statements of fact submitted by UNC to the NCAA in the course of an investigation, reinstatement requests on behalf of a particular athlete submitted by UNC to the NCAA, and similar documents relating to a player subjected to penalties or sanctions by the NCAA for non-academic misconduct.

Importantly, the University does not have to disclose the materials unless the investigation resulted in penalties or sanctions. Documents relating to an investigation that did not result in the player being declared ineligible or subjected to other sanctions by the NCAA for an impermissible benefits rules violation are not required to be disclosed.

Judge Manning was careful to emphasize that “information relating to truly academic issues pertaining to student-athlete academic misbehavior. . . is protected from disclosure by FERPA.” So, documents relating to investigations on the basis of academic performance issues such as low GPA, academic courses, etc., are protected by FERPA as academic records and are not required to be disclosed.

On a related issue, the Court also determined the scope of protection for the University’s formal response to the NCAA (a large document dated September 29, 2011, with exhibits). The University previously released a heavily redacted version of the response. Judge Manning ruled that redactions in the public version of the document were appropriate to protect employees and academic student records. However, portions of the response relating to impermissible benefit violations resulting in sanctions and ineligibility are not protected and must be disclosed in unredacted form. In the Court’s words, “the cloak of secrecy must be lifted and the sun let in for all to see.”
 

Charlotte Observer Draws Fire for Records Request

The Charlotte Observer was recently on the receiving end of a wave of criticism in response to public records requests it made to local government bodies in the Charlotte area.  The criticism did not stem from what it asked for per se, but rather who did the asking and why.  

As reported by Julie Rose of WFAE in Charlotte, the newspaper compiled tens of thousands of private email addresses by making public record requests of the City of Charlotte, Mecklenburg County, and other localities, seeking the addresses of those who had signed up for local government email updates.  Such email updates could, for example, include notifications from cities as to when official meetings had been scheduled.  An example of one of the newspaper's requests (to the Town of Davidson, North Carolina) is linked here.

As you can see from the link, the person who made the request on behalf of the Charlotte Observer was not a reporter but rather its "Director of Strategic Products and Audience Development."  This led the City of Charlotte to notify its employees of the request, which then prompted much hue and cry, with many leveling the accusation that the newspaper was using the Public Records Act to obtain information for marketing and commercial purposes.  

However, according to the newspaper's editor, the purpose of the request was not commercial in nature.  He indicated the newspaper intended to use the information to ask persons via email "if they would like to occasionally advise us on how we're reporting and what they would like to know more from their government and more about their community."  The newspaper subsequently backed away from that statement and pledged not to use the email addresses, based in part on the outcry voiced on its website and other blogs.  Other negative commentary can be found here and here.

Of course, who was doing the asking and why have no legal consequence whatever under North Carolina's Public Records Act.  The Act specifically provides that the requester cannot be required to disclose the purpose of a request.  And if a list of email addresses is a public record -- and it is if the public body made or received the list in the course of conducting public business -- then it does not matter whether the Charlotte Observer, Duke Energy, or Jane Q. Public asks to inspect a copy of the list.

These legal conclusions, however, are entirely distinct from the reality that what is a public record today may not be tomorrow -- the General Assembly can both giveth and taketh away, and it has created new exceptions to the Act in the past when some particular circumstance or court decision motivated it to do so.  So while the Charlotte Observer was no doubt within its rights to make the requests it made, that does not mean it was a good idea to do so, especially when you take into account the axiom that every action in the public records world can lead to an equal and opposite reaction from the legislative pen.

Despite the Charlotte Observer's pledge, the N.C. League of Municipalities still lists the following as one of its legislative goals for this term:

Seek legislation to protect the privacy of municipal residents by limiting public access to lists of email addresses submitted by citizens to municipalities.

We'll keep you posted on this and other legislative battles over the Public Records Act in North Carolina this year.

"Sunshine Amendment" Introduced in North Carolina

A bill introduced this week in the North Carolina General Assembly would enshrine the value of government transparency into North Carolina's Constitution.  North Carolina, like many states, provides citizens with a statutory basis for inspecting government records through its Public Records Act, N.C. Gen. Stat. 132-1 and for attending official meetings of public bodies through its Open Meetings Law, N.C. Gen. Stat. 143-318.9.  However, the commitment to public access embodied in these laws is undermined by their numerous exceptions, such as exceptions in the Public Records Act for public employee records that are expansive by national standards.

House Bill 87, sponsored by Representatives Tim Moore and Stephen LaRoque, would set an important marker on this issue and help to stem the tide of efforts to chip away at access to government records and meetings by layering exceptions upon exceptions.  The amendment would offer a broad statement of the importance of openness in government:

Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the State, or persons acting on their behalf, except with respect to records exempted pursuant to this Section. This Section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, governmental subdivisions, units of local government, and special districts; and every office, board, commission, or entity created pursuant to law or this Constitution.

The bill contains an analogous statement with respect to government meetings.

The amendment would fortify these statements of principle by requiring supermajority votes in both chambers of the North Carolina General Assembly -- 2/3 majorities -- to enact new restrictions on access to public records and official meetings.

Passage of this bill should be a priority for all legislators who earnestly believe Justice Louis Brandeis's famous observation that "sunshine is said to be the best of disinfectants."  As co-sponsor Rep. Moore observed, “Open access to information is critical to any democracy.  People have a right to know, and this protects that right.

If the amendment passes the North Carolina House and Senate, it would be placed on the ballot in 2012.  

New Effort to Restrict Access to 911 Calls in North Carolina

As the 2011 session of North Carolina's General Assembly kicks off this week, we see the first (and likely not the last) salvo seeking to curtail access to public records in North Carolina.  Representatives of the Durham Police Department have persuaded the N.C. Association of County Commissioners to lobby the legislature to revise North Carolina's Public Records Act so that it no longer provides unfettered access to 911 tapes.  Instead, police departments would have to provide only written transcripts of recordings or recordings that obscure or distort the caller's voice.

As currently drafted, N.C. Gen. Stat. s. 132-1.4(c)(4) specifically provides for access to 911 recordings, stating that the following "shall be public records":

The contents of "911" and other emergency telephone calls received by or on behalf of public law enforcement agencies, except for such contents that reveal the name, address, telephone number, or other information that may identify the caller, victim, or witness.

Such tapes offer an important newsgathering source for media organizations, not just with respect to criminal conduct and emergency events but also with respect to the performance of 911 call operators.

The motivation for seeking a change in this law is apparently a particular instance in which a 911 call was aired on television, and the caller was recognized by voice and subsequently stopped cooperating with Durham police after being threatened.  The problem with this approach to lawmaking is that it would have access to 911 records for everyone turn on the peculiarities of an exceptional circumstance.  We've seen this same sort of argument made before with respect to autopsy records, and we've reported on similar rationales given for restricting access to 911 calls in other jurisdictions.  These arguments allow the tail to wag the dog when it comes to access to government records.

The argument in this particular case also ignores the presence of a safety valve.  In this case, if a police department truly felt that a cooperating witness would be placed in harm's way if a 911 recording were made available, the department could seek a court order under N.C. Gen. Stat. s. 132-1.4(e) to restrict access to the recording and to permit the department instead to provide a written transcript of the call.  Thus, the law as currently written has a mechanism for addressing the truly exception situations in which the Durham police department's concern is triggered, while preserving unrestricted access in the vast majority of cases in which that concern does not arise.  The General Assembly should retain this sensible approach.

Media Outlets Sue for Records Relating to UNC Football Investigation

A number of media outlets instituted legal action yesterday against the University of North Carolina under North Carolina's Public Records Act, seeking several categories of records relating to the much-publicized investigation into UNC's football program this fall.  The plaintiffs' complaint, which is available here, names several individual defendants, including UNC Chancellor Holden Thorp, Athletic Director Dick Baddour, and head football coach Butch Davis.

The lawsuit presents an interesting collision between the openness obligations of a public institution and the interests in student privacy the university must protect in accordance with the Federal Educational Rights and Privacy Act, known as "FERPA."  The plaintiffs have put a range of documents at issue in the lawsuit, including the following:

  • records of any investigation by UNC of misconduct by its football coaches and players, any sports agent, any athletic booster, and any academic tutor
  • names of individuals and organizations that provided any improper benefits to UNC football players
  • telephone records of UNC's athletic director, head coach, and a former associate head coach
  • parking tickets issued to 11 football players
  • names, employment dates, and salaries of all individuals employed as academic tutors since 2007
  • names of recipients of athletic scholarships

In a nutshell, several UNC football players have been suspended from action or declared permanently ineligible for accepting improper benefits from sports agents and/or others.  Another group of players has been held out this season because of academic improprieties relating to a particular former academic tutor.  The school has been particularly circumspect in the information it has released about what transpired, and it has revealed few, if any, names of those involved other than the players themselves.

It is not clear from the allegations of the lawsuit where the gaps in the records UNC has made available to media organizations lie.  UNC has apparently heavily redacted information from some of the documents it has disclosed, while withholding other documents altogether.  The plaintiffs allege that the school has cited FERPA as its basis for "refus[ing] to produce the requested records, in whole or in part."

We will monitor closely the progress of this lawsuit.  In addition to resolving the tension between the Public Records Act and FERPA, this lawsuit will also serve as an early, high-profile opportunity to kick the tires of recent changes to the Public Records Act, which we previously reported.  These changes include revisions making it easier for prevailing plaintiffs to recover their attorneys' fees, a change that went into effect October 1, 2010.

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.

Supreme Court Upholds Washington Public Records Act

In a case we first flagged back in October of 2009, the Supreme Court last week handed down its decision in Doe v. Reed, a case involving a First Amendment challenge to Washington state's public records act.  The case presented an interesting collision of interests for the media, but the Court held 8-1 that the First Amendment did not prevent the disclosure, pursuant to the PRA, of the identities of those citizens who signed a petition seeking to place a referendum on the ballot.

When the Court granted cert in January, we described the case as follows:

The dispute in Doe v. Reed involves the question of whether the signed petitions that ultimately allowed Referendum 71 [a ballot initiative seeking to overturn a law that granted legal rights to domestic partners equivalent to those enjoyed by married couples] to appear on the ballot constitute public records that are subject to disclosure under Washington law as public records. Nearly 138,000 names appear on these petitions. The plaintiffs brought suit in federal court, contending that those who had requested the petitions had indicated they would publish the list of names on the Internet. Making the list available under public records laws, according to the plaintiffs, threatened to chill the First Amendment activity of supporters of Referendum 71. The plaintiffs assert that those who petitioned to include Referendum 71 on the November ballot would face harassment from opponents of the ballot measure if their names were made publicly available.

As we wrote back then, upholding the PRA would constitute an important victory for government reporters, for whom public records laws are a core part of their newsgathering activities.  And yet, the opposite ruling might help boost claims of First Amendment support for anonymous speech, which more and more news outlets find themselves asserting these days.

In a welter of concurring opinions (and one dissent), the Court explored all angles of the case, finally holding that the petitioners' facial challenge to the PRA failed because the state had a sufficient interest in enacting laws designed to preserve electoral integrity.  The PRA, the Court held, was not a prohibition on speech, but rather was a disclosure requirement in the voting context, meaning that it was reviewed under a less exacting standard than "strict scrutiny."  Chief Justice Roberts, for the Court, wrote that giving the public access to petition records provided a crucial check on the government's efforts to count and validate those signatures, and that such a check was sufficiently related to the state's interest in electoral integrity.

Justice Alito concurred insofar as the case was a facial challenge, but made it clear that he would rule differently on an as-applied challenge if the petitioners can show a "reasonable probability that the compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals" from the government or the public.

Justice Scalia, also concurring, said that the petitioners had no First Amendment right to non-disclosure.  Justice Scalia pointed out that those who signed the petition had not done so anonymously -- indeed had they done so their "signatures" would not have counted.  Because they were only now seeking to have that action be anonymous, Scalia called this " a sort of partial anonymity" not worthy of First Amendment protection.

Justice Thomas took the opposite view in his dissent, writing that the First Amendment interest in anonymous speech trumped the state's purported concerns about electoral integrity.  In Justice Thomas' view, the proper standard was strict scrutiny, and, under that standard, the PRA could not constitutionally force the disclosure of petition information because "there will always be a less restrictive means by which Washington can vindicate its stated interest in preserving the integrity of its referendum process."

Florida Bill Limiting Access to 911 Calls Moves Forward

A committee of the Florida legislature this week approved on a party-line vote a bill that would require a court order to access 911 call recordings.  This development follows on the heels of efforts in several other states to curtail access to 911 calls under state sunshine laws, a trend on which we previously reported.

On Wednesday, the Government Affairs Policy Committee of the Florida House of Representatives approved by an 8-5 vote proposed committee bill 10-03a, with all Republicans on the committee voting for it and all Democrats voting against.  The bill would exempt "Any recording of a request for emergency services or report of an emergency using an emergency communications E911 system" from the public disclosure requirements of Florida's public records laws, including Section 119.07(1) and Section 24(a) of Article I of the Florida State Constitution.  A 911 recording could be released pursuant to a court order finding good cause for disclosure.  Upon request, a person could obtain a transcript of a 911 call, after 60 days and with all personal identifying information redacted.

The Miami Herald has reported that the 911 bill is a top priority of the Speaker of the Florida House, Larry Cretul, who took the unusual step of stacking the Government Affairs Policy Committee meeting Wednesday with an extra Republican to ensure passage.  A powerful ally of Speaker Cretul has urged Cretul to secure passage of such a law after he lost his son and subsequently heard a recording of the 911 call on a news broadcast.

The Florida bill therefore follows a pattern we noted in other states where similar bills are under consideration -- anecdotal evidence of the broadcast of wrenching 911 calls is cited in support of sweeping measures that would eliminate access to 911 recordings in most cases.  These bills appear driven more by a misguided desire to exercise editorial control over the use of 911 recordings by news organizations than by any genuine problem associated with access itself.  In fact, the Florida bill recites as a policy basis the notion that "there are those persons, who, for personal, private gain or for business purposes, would seek to capitalize on individuals in their time of need."

This bill and others like it underscore a prominent person upset with the use of a public record in a particular circumstance can succeed in having legislative bodies consider wholesale changes to everyone's access to public records.  This is a troubling trend.

The Florida bill faces an uncertain fate, as it is opposed by Florida Democrats and Governor Crist, and it must pass by a supermajority vote.  We will continue to follow the progress of this bill.

Newsroom Legal Fights Go On, Even in Bad Economy

The New York Times ran an interesting report on how the bad economy has impacted newspapers' decisions on whether to litigate public record and access issues.  The bottom line, according to the Times -- while smaller, regional news organizations are scaling back their legal efforts, large national outlets "have been quietly ramping up."

The Times cited in particular Hearst and the Associated Press as two organizations that have been as aggressive as ever in pushing state and federal officials on public record and access issues.  According to the story, both are dealing with tighter budgets by bringing more of their legal work in-house, rather than using outside counsel.

Eve Burton, vice president and general counsel at Hearst, told the Times that Hearst was at an all-time high in the number of access cases it was pursuing.  Hearst's most high-profile fight is in Texas, where it has sued the governor's office for records relating to the 2004 execution of Cameron Todd Willingham, a man many death penalty opponents believe may have been innocent.

The A.P. and Bloomberg News have also been in high-profile legal fights with Treasury Department officials over Freedom of Information Act requests they have filed, the Times reported.

Unfortunately, the Times found, smaller news organizations are choosing to forgo possibly expensive legal fights because their budgets simply will not allow them.

This reluctance only highlights the importance of attorneys' fees provisions in public records statutes, as they are often the only way to truly hold government officials accountable when they improperly withhold public records.

States Move to Curtail Access to 911 Calls

The Associated Press reported this week of efforts underway in several states to limit access to 911 calls under state sunshine laws.  According to the report, legislatures in Alabama, Ohio, and Wisconsin are considering bills that would pull back from the traditional availability of 911 recordings.  Missouri, Pennsylvania, Rhode Island, and Wyoming currently exempt 911 calls from the operation of public records statutes.

In Alabama, HB 159 passed the Alabama House earlier this month.  The bill, if enacted, would prevent the disclosure of 911 calls to the public without a prior order from a judge, who would consider "whether right of the public to the release of the recording outweighs the privacy interests of the individual who made the 911 call or any persons involved in the facts or circumstances relating to the 911 call."

Under SB 105, a bill introduced this session in the Ohio General Assembly, 911 calls would remain public records but members of the broadcast media would be barred from "play[ing] a recording of a 9-1-1 call that has been made available as a public record over a broadcast medium such as radio, television, or the internet."  Transcripts of 911 calls could be read over the air.  Violation of the provision would subject the broadcaster to a $10,000 fine.

In Wisconsin, AB 612 as originally introduced would prevent disclosure of 911 audio recordings, with transcripts remaining available for copying.  The bill was subsequently amended in committee to permit inspection but not copying of 911 recordings.

These bills appear to be driven by the reaction of some to isolated editorial choices made by television stations.  As the AP article recounts, the sponsors of these bills cite anecdotal accounts of a person who suffered a traumatic loss later hearing a 911 recording made in connection with the loss.  The problem with these moves to curtail access to 911 calls is that they allow the tail of a few questionable decisions by news editors to wag the dog of access to government records generally.  Police incident reports, arrest reports, and 911 recordings provide important sources of information for reporters to cover local law enforcement agencies, and 911 recordings in particular provide a way of monitoring the responsiveness of 911 call centers.  

The principle that government records should be freely available, no less so than the First Amendment's protections to free speech, comes with consequences.  Sometimes people say things that hurt; sometimes reporters broadcast stories their viewers don't like.  However, these consequences should not cause legislatures to lose sight of the greater societal value of government transparency.

U.S. Supreme Court to Consider Access to Identities of Ballot Initiative Supporters

January has been a prolific month on the U.S. Supreme Court docket for cases raising First Amendment or other media issues.  In addition to the Citizens United and Presley decisions addressing limits on corporate political speech and access to jury voir dire proceedings, the Supreme Court earlier this month agreed to hear a case out of the Ninth Circuit involving public access to the petitions that put in place a controversial Washington ballot initiative.  The petitions were sought under a state sunshine law in an effort to learn the identities of those who supported placing the initiative on the ballot.  The case therefore presents an interesting collision of the First Amendment rights to speak anonymously and to peaceably assemble and state sunshine laws.

We previously reported on the Doe v. Reed case, which the Supreme Court stayed while considering the petition for certiorari it ultimately granted this month.  The case relates to Referendum 71, a ballot initiative that appeared on the November 2009 ballot in the State of Washington and was intended as a vehicle for overturning a law, passed earlier in 2009 by the Washington legislature, that granted legal rights to domestic partners equivalent to those enjoyed by married couples.  The initiative passed with slightly above 53% of the vote, a result that upheld the law.

The dispute in Doe v. Reed involves the question of whether the signed petitions that ultimately allowed Referendum 71 to appear on the ballot constitute public records are subject to disclosure under Washington law as public records.  Nearly 138,000 names appear on these petitions.  The plaintiffs brought suit in federal court, contending that those who had requested the petitions had indicated they would publish the list of names on the Internet.  Making the list available under public records laws, according to the plaintiffs, threatened to chill the First Amendment activity of supporters of Referendum 71.  The plaintiffs assert that those who petitioned to include Referendum 71 on the November ballot would face harassment from opponents of the ballot measure if their names were made publicly available.

The district court issued a preliminary injunction barring release of the names, concluding that "supporting the referral of a referendum is protected political speech, which includes the component of the right to speak anonymously."  The Ninth Circuit reversed, holding that signing one of the petitions at issue does not constitute anonymous speech because the petitions are not created in a way that is designed to protect confidentiality.  It held further that the district court erred in applying strict scrutiny to Washington's sunshine law, and, when intermediate scrutiny is applied, the sunshine law passes muster because "each of the State’s asserted interests is sufficiently important to justify the PRA’s incidental limitations on referendum petition signers’ First Amendment freedoms."

The fact that the Supreme Court agreed to hear the case may signal that the Ninth Circuit ruling's days are numbered.  If that occurs, a sweeping decision affirming the right to speak anonymously would appear to be an important First Amendment victory.  However, the outcome here -- in which a third party has asserted a constitutional challenge to a sunshine law -- has troubling implications for those in the newsroom.  Reporters face enough trouble securing materials under state public records statutes without interference from third parties.  Reversal of the Ninth Circuit's decision may encourage court challenges to public records laws by third parties such as public employees or private entities contracting with or seeking money from public agencies.  We will watch closely for the outcome in this case, which is set to be argued in April.

N.C. Court of Appeals Affirms Dismissal of Public Records Action against State Treasurer

The North Carolina Court of Appeals earlier this week affirmed in a 2-1 decision the dismissal of a public records action brought by the State Employees Association of North Carolina ("SEANC") against the North Carolina Department of the State Treasurer ("Treasury Department"). The decision, which held that SEANC failed to state a claim under the North Carolina Public Records Act, N.C. Gen. Stat. s. 132-1, et seq., is troubling in how the court approached both the substantive and procedural issues presented in the case.

The long-brewing dispute traces back to correspondence between SEANC and the Treasury Department from March 2007.  At that time, the North Carolina State Treasurer was Richard Moore, who later fell short in a bid to become the Democratic nominee for North Carolina Governor during the 2008 election cycle.

After an investigative piece appeared in Forbes concerning investment decisions made with respect to the $73 billion state retirement system, SEANC's executive director submitted a written public records request to the Treasury Department.  In response to that request, the Treasury Department provided approximately 700 pages of documents to SEANC.

In October 2007, SEANC wrote again to the Treasury Department, asserting that its response to the March records request was incomplete, and requesting disclosure of additional categories of documents.  SEANC apparently received no response, and a month-and-a-half later threatened legal  action if the Treasury Department did not fully comply with the March and October records requests.  The parties exchanged correspondence in which the Treasury Department made statements about its production and asked in what ways SEANC believed the production was incomplete, and SEANC outlined what it believed were deficiencies in the Treasury Department's disclosure.

SEANC instituted a public records action in February 2008, alleging in its complaint that "defendants have failed to provide copies of a significant portion ofthe public records requested in Dana S.Cope's  March 1, 2007, letter (Exhibit B) and practically all of the public records requested in Dana S. Cope's October 16, 2007, letter (Exhibit C)." 

The Treasury Department filed an answer in response to the complaint, affirmatively alleging that "except insofar as any documents may be exepted from Plaintiff's public records request as 'trade secrets' within the  meaning of N.C. Gen. Stat. ss.132-1.2(1)a and 66-152(3), all responsive records havebeen provided, and that to date well over 2,000 pages of documents havebeen produced."  The Treasury Department also moved to dismiss SEANC's complaint under Rule 12(b)(6) on the grounds that all responsive documents, with the exception of any statutory trade secrets, had been produced.

The trial court granted the Treasury Department's motion, which SEANC appealed.  On appeal, the North Carolina Court of Appeals affirmed the dismissal in a decision that is troubling in at least two respects.

First, despite the fact that the case was at the Rule 12(b)(6) stage, at which point the allegations of the plaintiff's complaint must be taken as true, the court recited material affirmatively alleged (without affidavit or verification) in the Treasury Department's answer.  In particular, the court noted that the Treasury Department contended in its answer that it had produced all responsive documents in its possession (exceeding 2,000 pages) that were not trade secrets.  From this allegation in the answer, the court concluded:

After Defendants reviewed their records to determine which records were public, it was reasonable for Defendants to deny Plaintiff's request regarding the public records that were not in their possession and records which contained trade secrets and therefore were within the public records exception.

This statement assumes the truth of facts not evident from the allegations on the complaint -- indeed that are directly contrary to the allegations of the complaint -- including whether the Treasury Department had sufficiently reviewed its records, whether it had produced all responsive  documents in its possession, and whether any documents withheld in fact constitute trade secrets under North Carolina law.  In short, the court assumed as true matters alleged in the answer rather than matters alleged in the complaint.

Second, from this flawed procedural foundation the court drew a questionable legal conclusion as to the substantive matter before it, namely whether SEANC had stated a claim under the public records act.  The court stated that the Treasury Department "met its burden" under the public records act by asking SEANC to specifically identify what documents it contended the Treasury Department had failed to produce.  Setting aside the question of whether SEANC in its correspondence had in fact provided such specificity to the Treasury Department, the court concluded that

The complaint did not allege that Defendants were in possession of any particular public records that were being wrongfully withheld from Plaintiff, but merely alleged that Defendants had failed to provide portions of the requested public records.

The court does not provide any statutory citation for this purported pleading requirement, nor did it cite any prior appellate decision finding one.  Section 132-9 of the public records act straightforwardly provides:

Any person who is denied access to public records for purposes of inspection and examination, or who is denied copies of public records, may apply to the appropriate division of the General Court of Justice for an order compelling disclosure or copying, and the court shall have jurisdiction to issue such orders.

There is no suggestion that a person who believes a state agency has failed to comply with a public records request need specify in the complaint or otherwise those particular documents he or she believes have been withheld.  And the court offered no explanation for how a requesting party, particularly one seeking categories of documents, would be in a position to set out with precision what documents had not been provided.

The court concluded as follows:

We hold that although Plaintiff did not have the burden of showing Defendants' possession of the requested public records, Defendants correctly reviewed their records, determined which which public records were in their possession, and produced the responsive public records.

The bottom line is that the record before the court -- with only the allegations of the complaint, which must be taken as true, and an answer -- simply does not provide a basis from which the court could reach such a determination at the initial pleadings stage of the case.

Judge Elmore dissented from the majority decision, which means under North Carolina law that SEANC has an automatic right of appeal to the North Carolina Supreme Court.  We will follow closely any further developments in this case.

Supreme Court Stays Appellate Ruling Requiring Disclosure of Ballot Initiative Supporters

The U.S. Supreme Court took action today in a high-profile public records dispute, issuing a stay of a Ninth Circuit ruling that requires the release of the names of those who petitioned to include a referendum on the ballot in the State of Washington this November.  The dispute relates to Referendum 71, a ballot initiative that would overturn a Washington law, passed this year, granting legal rights to domestic partners equivalent to those enjoyed by married couples.  The initiative was launched by a conservative group that opposes same-sex marriage.

In order to appear on the November ballot, supporters of Referendum 71 were required to secure in excess of 120,000 signatures on petitions.  They achieved that benchmark by the July deadline.  Shortly after the petitions were submitted, supporters of Referendum 71 filed suit in federal court in Washington, seeking a temporary restraining order that would block the release of the names appearing on the petitions.  Opponents of Referendum 71 had requested access to the names under Washington's public disclosure act.

According to the plaintiffs, those who had requested the list of names had indicated they would publish the list on the Internet.  In the federal lawsuit, the plaintiffs contended that making the list available under public records laws threatened to chill the First Amendment activity of supporters of Referendum 71.  The plaintiffs contend those who petitioned to include Referendum 71 on the November ballot would face harassment from opponents of the ballot measure if their names were made publicly available.

This case therefore presents an interesting intersection of the statutory right to access public records and the First Amendment right to speak and participate in the political process anonymously.  In response to the plaintiffs' lawsuit, the federal district judge issued in July a temporary restraining order and later in September a preliminary injunction blocking the release of the petitioners' names.  According to the September decision, the plaintiffs' legal theory is as follows:

In Count I of the complaint, Plaintiffs allege that the Washington Public Records
Act, RCW 42.56.001, violates the First Amendment as applied to referendum petitions because the act is not narrowly tailored to serve a compelling governmental interest. In Count II, Plaintiffs allege that the Public Records Act is unconstitutional as applied to R-71 because “there is a reasonable probability that the signatories of the R-71 petition will be subjected to threats, harassment, and reprisals.”

In its ruling, the district court concluded that "supporting the referral of a referendum is protected political speech, which includes the component of the right to speak anonymously."  The court went on to conclude that the public nature of the petition verification process (which may be observed by initiative opponents and proponents alike so long as information contained on the petitions is not recorded) meant that public disclosure of the names on the petitions was not necessary as a check on the integrity of the referendum process.

The State of Washington appealed the decision entering a preliminary injunction to the Ninth Circuit Court of Appeals, which, in an order released October 15, reversed the district court's decision and required the release of the list of petitioners.  The Ninth Circuit has not yet issued a written decision, but rather has indicated that a full written opinion will follow in due course.  In arguing its case to the Ninth Circuit, the State of Washington maintained that the list of names should be publicly available under Washington's public disclosure law because the referendum process is more akin to the legislative process than to the secret ballot.

The case took a new twist today when Justice Anthony Kennedy issued a short order staying the Ninth Circuit's decision while the U.S. Supreme Court decided whether to take up the matter.  Justice Stevens was the only Justice who indicated he would have denied the stay request.  We will follow this case closely as it proceeds.

N.C. Governor Vetos Legislative Confidentiality Bill

North Carolina Governor Beverly Perdue vetoed a bill last week that would have allowed certain documents used in the legislative process to remain confidential.  The Raleigh News and Observer has the full story.

House Bill 104 would have, among other provisions, made legislative "drafting requests," "information requests," and certain other documents submitted in connection with such requests confidential as a matter of state law -- the bill expressly exempted such materials from the state pubic records statute.  Documents prepared by legislative employees at the request of lawmakers would also have been deemed confidential.  The bill would have subjected violators to criminal penalties.

In a public statement announcing the veto, Governor Perdue stated, in part, that “[t]ransparency and accountability are hallmarks of my administration.  If this legislation became law, documents that are currently public record would become private.” 

Governor Perdue's veto could have been overridden by a vote of the North Carolina General Assembly.  But on Friday, House and Senate leaders announced they would not return for a special session to vote on an override.  That means that Governor Perdue's veto stands.

Judge Rules NCAA Documents Are Public Records

In a closely watched case, a Leon County, Florida trial court judge held last week that records concerning an NCAA investigation into possible academic cheating by athletes at Florida State University were public records subject to disclosure.  A coalition of media organizations had filed suit under Florida's public records law, seeking the release of transcripts from a 2008 NCAA hearing in which school and NCAA officials discussed the allegations of cheating.

The factual wrinkle that made this case unique was that University officials never actually received a paper copy of the documents from the NCAA.  Instead, the NCAA provided the school with secure access to a web site managed by the NCAA where the transcripts and other documents could be read -- but not downloaded or printed.  Because of this, the NCAA, which opposed making the records public, argued that the state never possessed the records, and therefore they were not subject to the public records law.

Media attorneys and attorneys for the state, which supported the release of the documents, argued that accepting the NCAA's interpretation of the law would allow any state contractor to utilize a similar view-only web site to circumvent the clear intent of the law.

According to the Orlando Sentinel, the judge agreed that the documents were public records.  He said: "The NCAA's position is clearly contrary to the broad interpretation given to the definition of public records in Florida courts and legislative language."  Once University officials looked at the report online, it is as if they had received a paper copy, he said.

The NCAA has indicated that it will appeal the ruling and seek a stay of the judge's order.  The private organization is claiming that subjecting it to state public records laws would violate its First Amendment right of association because confidential informants might be less willing to report possible violations by NCAA schools if they fear public disclosure.

N.C. House Passes Bill Strengthening Attorney Fee Provision of Public Records Act

Last week the North Carolina House passed H. 1134, a bill that would make it easier for private citizens and media organizations who prevail in public records disputes with government agencies to recover their legal fees.  Although the bill is still up for consideration in the North Carolina Senate, having been received and referred to the Judiciary I committee, passage of H. 1134 in the House represents a significant breakthrough.  Past efforts to strengthen the fee recovery provision of North Carolina's Public Records Act foundered in the House.

The bill, co-sponsored by Rep. Deborah Ross, would make several changes to the Public Records Act.  Under the current state of the law, if a court concludes that a losing government agency acted with "substantial justification" in withholding the records at issue, attorneys' fees are not to be awarded to the prevailing plaintiff.  In particular, G.S. 132-9(c) provides as follows:

In any action brought pursuant to this section in which a party successfully compels the disclosure of public records, the court shall allow the prevailing party to recover its reasonable attorneys' fees if attributed to those public records, unless the court finds the agency acted with substantial justification in denying access to the public records or the court finds circumstances that would make the award of attorneys' fees unjust.

The substantial justification provision in G.S. 132-9(c) has proved a difficult hurdle for prevailing plaintiffs to overcome.  Under H. 1134, the grounds for denying recovery of attorneys' fees to a prevailing plaintiff would be narrowed to three specific bases:

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 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: (1) A judgment or an order of a court applicable to a governmental unit or governmental body; (2) The published opinion of an appellate court; or (3) A written opinion, decision, or letter of the Attorney General.

The bill would also create an Open Government Unit of the North Carolina Department of Justice.  The new division would be charged with the responsibility of mediating public records disputes informally before they reach the courts.  The Open Government Unit would also develop and implement education programs designed to educate public agencies of their rights and responsibilities under the Public Records Act, and it would make resources concerning public records available electronically.

H. 1134, entitled the Open Government Act, passed with overwhelming support on the House floor, carrying by a margin of 107-5.  The lopsided margin contrasts with the drama that occurred in the House Finance committee, where an amendment that would have also required losing plaintiffs to pay the attorneys' fees of the winning government agency, failed by a 13-13 margin.

We will monitor the progress of H. 1134 in the North Carolina Senate.

New Year, New Governor, New E-Mail Policies?

January 2009 marks the start of a new year, with a new President in the White House and new Governors in a number of states, including North Carolina and Missouri. Two outgoing governors, North Carolina Governor Michael Easley and Missouri Governor Matt Blunt, faced intense conflict with the media during 2008 over the issue of retention of and public access to government e-mail messages under relevant public records laws. The conflicts were often heated but were ultimately resolved in anti-climatic fashion in the final days of their respective administrations.

In North Carolina, Governor Easley had a public clash with local media organizations when it was reported that the Governor’s staff may have directed state agencies to routinely delete e-mails received in the course of government business. The allegations were made following the termination of the state Department of Health and Human Services’ public information officer for, reportedly, failure to comply with public records requests. As the story unfolded, the news media reported that the Governor had established a policy that allowed state employees to delete messages that had only "short-term" value or no "reference" value. For a comprehensive collection of articles and government statements relating to the e-mail controversy, click here.

Like many states, North Carolina has a public records statute that plainly provides a right of public access to e-mail. Section 132-1(a) provides, in relevant part:

“Public record” or “public records” shall mean all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions.

The public records statute further provides that “public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people” and that “the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law.”

Given the clear statutory language and the absence in the public records statute of any blanket e-mail exemption, media advocates disagreed with the Governor's policy that permitted e-mail messages received in the course of transacting agency business to be deleted. In March 2008, the Governor appointed a panel to review executive office policies concerning the retention of e-mail under the state’s public records law. Then, in April 2008 several news organizations filed a lawsuit to enforce the public records law with respect to the Governor’s e-mail policy. The committee made its recommendations in May 2008.

On January 9, 2009—his last day in office—Governor Easley signed an Executive Order adopting a new e-mail policy making clear that “e-mail messages sent and received in connection with state business are public records.” Of course, this finding is consistent with and, in fact, compelled by the public records statute. The full text of the order, which requires 13 points of action, is provided here.

One significant aspect of the order is that it requires state executive branch employees to retain e-mail messages sent or received in the course of conducting state business for at least 24 hours.  Relatedly, the order requires e-mail messages to be backed up at least once daily and for backup tapes to be kept for at least 10 years; this means that all e-mails should theoretically be available in some electronic form for at least 10 years, although obtaining access to e-mail messages available only on backup tapes may be problematic from a practical standpoint.

The order also requires employees who conduct public business using personal e-mail accounts or personal devices (e.g., Blackberrys) to ensure that all public records are properly retained and archived—obviously, this requires employees to take initiative to retain these e-mails and make them accessible to the agency for archiving and to the public for inspection. The order further directs executive branch employees to treat e-mails they send or receive via government e-mail accounts as public records and to handle those e-mails in accordance with the public records statute; however, the order also appears to leave the determination whether or not to delete e-mail messages (after the 24-hour holding period) to employees.

It is unclear whether newly inaugurated Governor Beverly Perdue will let the Executive Order stand as it is or issue a new or different one.

Beginning in 2007 and lasting through 2008, Missouri Governor Blunt had a similar experience regarding retention of government e-mail. In late 2007, media organizations reported that members of the Governor’s staff may have deleted government-related e-mail messages in violation of Missouri’s public records law. As in North Carolina, a lawsuit was filed concerning the Governor’s e-mail retention policies. Then, on January 5, 2009, only days before Governor Blunt’s term expired and the day trial was scheduled to begin, the court hearing the case approved a settlement agreement that requires a review and report of the Governor’s e-mail retention policies. According to press reports, allegations that the Governor’s office had “‘knowingly and purposely’” violated the state public records statute were dismissed.

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