Daily Advance: Making public records public

Usually when we take up this space to comment on legislation offered by state Rep. Bill Owens, it’s to offer thanks and congratulations. Owens has played a key role in numerous important bills over his 14 years in the Legislature, and more often than not we’ve agreed with his efforts.

We cannot say that, however, about Owens’ recent sponsorship of an amendment to an open records bill.

The Open Government Act, which passed the House by a lopsided 107-5 margin last week and is likely to be approved by the Senate, makes it more likely that citizens and media organizations that successfully sue government agencies in N.C. for public records can recover their legal fees.

Up until now that wasn’t a given. Recovering legal costs under the current law is difficult because judges are given the discretion to decline ordering the payments if they decide the government acted with “substantial justification” to deny access to records. That seems like an odd thing for a judge to do, especially when a plaintiff has proven he was unfairly denied access. But apparently enough judges have used this discretion that bill supporters felt the law needed changing.

The new law also sets up an Open Government Unit in the state Attorney General’s Office to help mediate public records disputes between citizens and government agencies. The unit is designed to help both parties by issuing advisory opinions about record requests before a lawsuit is filed.

The bill’s not perfect; governments could still avoid payment of the winner’s legal fees if the denial of records access was based on a ruling in another court case or an advisory opinion from the attorney general. Even so, the bill is a victory for open government because it sends a clear message that refusing to disclose public records has consequences. We appreciate Owens and Rep. Tim Spear, D-Washington, who represents Chowan, for voting for it. Inexplicably, Rep. Annie Mobley, D-Hertford, who represents Perquimans, voted against the bill.

Despite those kudos, we wish Owens hadn’t tried to weaken the legislation with an amendment pushed by the N.C. Association of County Commissioners. During a House Finance Committee hearing last week, Owens proposed allowing local and state governments to collect attorney fees should they win a public records dispute.

Owens told The Daily Advance the amendment was needed to “level the playing field” between governments and citizens when it comes to lawsuits over public records disputes. Owens said it was unusual for only one side in litigation to be able to demand payment of court fees. He also said that, while the press usually makes legitimate requests for records, there have been cases where record requests were frivolous, costing taxpayers thousands of dollars in unnecessary legal fees.

We can appreciate Owens’ concern for fairness. But there’s nothing fair about a citizen or newspaper having to take on a government in court over the denial of public records. Anyone who believes you can fight City Hall cheaply simply has never tried to fight City Hall. Citizens and newspapers have limited resources to pursue record requests in court. Governments, which face no similar restraints because they rely on the deep pockets of taxpayers, know this. Consequently, they can — and often do — play keep away with records that the public is entitled to have. They should have to pay the price for their decision to withhold records, and under this bill they will.

Fortunately, the House Finance Committee deadlocked on Owens’ amendment, meaning it wasn’t attached to the final bill that passed. Opponents rightly pointed out that inserting it would have had a chilling effect on citizens’ ability to file lawsuits in public records disputes.

Owens said he fully supports the public’s right to access public records, and we believe him. We just wish that he had put the public’s interest in this matter ahead of the county commissioners association’s.

Daily Advance Staff Editorial