Newsroom Law Blog : Media & Communications Lawyer & Attorney : Brooks Pierce Law Firm : Media Law, Libel Defense, FCC

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.

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Today the Office of Science and Technology Policy published a notice in the Federal Register requesting public comment on issues related to transparency and open government. The Federal Register notice is published here.

We reported earlier this year about President Obama’s transparency and open government memorandum signed on January 21, 2009—President Obama’s first full day in office. Among other things, this memorandum directed the Chief Technology Officer, along with the Office of Management and Budget and the General Services Administration, to develop recommendations for an “Open Government Directive.” The notice published today now invites the public to contribute to the recommendations that will become part of the Open Government Directive. 

Here is an excerpt from the notice:

The purpose of this Federal Register notice is to solicit public participation in the development of those recommendations. There is a great deal of dispersed information among the nation’s citizens. With twenty-first century tools, the United States is in a unique position to take advantage of that dispersed information to inform the policymaking process. Our goal is to use the principles of open government to obtain fresh ideas about open government itself.

The notice seeks comment on “government-wide or agency-specific policy, project ideas, and relevant examples.” Some possible areas of comment include identifying what government information should be readily available and searchable online and how government operations may be made more transparent and accountable.

According to the notice, the Open Government Directive will be issued by OMB and used to “instruct executive departments and agencies on specific actions to implement the principles set forth in the President’s transparency and open government memorandum.” Click here for more information on these broad principles of openness.

Comments from the public are due June 19, 2009. The Federal Register notice includes more information on suggested areas for comment and filing procedures.

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On his first full day in office, President Barack Obama issued two memoranda to the heads of executive departments and agencies plainly declaring that government departments and agencies must be open for public scrutiny.

In the Freedom of Information Act (“FOIA”) memorandum, President Obama directs executive departments and agencies to administer FOIA with a presumption in favor of openness. 

In the face of doubt, openness prevails.  The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.  Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.  In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.

The FOIA memorandum further directs agencies to adopt policies in favor of open disclosure and to apply those policies to all decisions involving FOIA.  Agencies should not merely react to FOIA requests but, rather, should proactively make information available to the public, including through use of modern technologies.  Furthermore, "disclosure should be timely."

The FOIA memorandum also directs the U.S. Attorney General to issue new guidelines governing FOIA to heads of executive departments and agencies and directs the Director of the Office of Management and Budget (“OMB”) “to update guidance to agencies to increase and improve dissemination to the public, including through the use of new technologies. . . .”  Both the Attorney General’s and OMB’s guidelines are to be published in the Federal Register.

The full text of the FOIA memorandum is linked here.

In addition to the FOIA memorandum, President Obama also issued a memorandum entitled, “Transparency and Open Government.”  The transparency memorandum broadly declares the following:

My Administration is committed to creating an unprecedented level of openness in Government.  We will work together to ensure the public trust and establish a system of transparency, strengthen our democracy and promote efficiency and effectiveness in Government.

The transparency memorandum goes on to set out three principles concerning the manner in which government "should" operate, and it states the actions executive departments and agencies should take to further those principles.

1. "Government should be transparent."  The administration will "take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use."  The memorandum states that executive departments and agencies should use new technologies to make information available to the public online and should also ask for public feedback to target the information that is "of the greatest use to the public."
2. "Government should be participatory."  Because "public engagement enhances the Government's effectiveness and improves the quality of its decisions," executive departments and agencies should offer (and ask for public feedback on how to offer) the public more opportunities to participate in policy decisions.
3. "Government should be collaborative."  The memorandum states that collaboration engages the public in government.  To that end, executive departments and agencies should "use innovative tools, methods, and systems to cooperate among themselves, across all levels of Government, and with nonprofit organizations, businesses, and individuals in the private sector.  Executive departments and agencies should also ask for public feedback on how to better collaborate and how to identify new opportunities for collaboration.

The transparency memorandum directs the Chief Technology Officer, along with the Director of the OMB, within 120 days to coordinate the development of an "Open Government Directive" that "instructs executive departments and agencies to take specific actions implementing the principles" laid out in the transparency memorandum.

The full text of the transparency memorandum is linked here.

It is important to recognize that the principles and guidelines set forth in the FOIA and transparency memoranda are not, in themselves, laws that create new rights of access.  Indeed, the memoranda are careful to point this out.  However, the memoranda set the tone for the executive branch at the outset of the new Obama Administration.  If followed, the memoranda suggest a pointed contrast to prior administrations.  For example, some have accused the Bush administration of secrecy and of frustrating FOIA by denying or dragging out requests.  Time will tell if FOIA access and openness will improve in the Obama Administration, but the memoranda appear to be a promising first step.  A number of prominent newspapers have penned editorials applauding the memoranda, including the New York Times, Los Angeles Times, Seattle Times, and Baltimore Sun.

The memoranda direct specific actions to be taken by certain executive branch officials (e.g., the Director of OMB, the Attorney General, and the Chief Technology Officer), so we should see new agency guidelines concerning FOIA and an Open Government Directive in the future. 

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