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Our View: The missing teeth in public records laws

The public — including both the news media and individual citizens — has a right to access the records of the governments that are supposed to serve the public. Access to public records is guaranteed by statutes in many states, including North Carolina. But laws on the books don’t always work as they should.
The website of the First Amendment Foundation describes one set of penalties for withholding public records this way: “A knowing or intentional violation is a 1st degree misdemeanor punishable by a fine of up to $1,000 and a jail term not to exceed one year. An unintentional violation is a non-criminal infraction, punishable by a fine up to $500. A public officer who intentionally violates the public records law is subject to suspension or removal from office. Attorney’s fees and court costs are available to the requestor that prevails in a civil suit for access.”
Now that’s a policy with some teeth. Unfortunately, the website’s description is regarding the laws in Florida, which could not be more different from those in North Carolina.
Both states guarantee public access to records. Both states have a number of exemptions and loopholes that are debatable and dilute the right to see what our local and state governments have been doing. But North Carolina’s weak laws can be summed up as follows: “so sue me.”
Instead of North Carolina prosecutors going after public officials with criminal charges when they show contempt for the people’s right to know, the party seeking the records only has recourse to potentially expensive, time-consuming and unpredictable litigation, which may not even result in them being awarded court costs if they succeed. Instead of politicians or bureaucrats risking the loss of their offices or jobs when they withhold or falsify information, they face only the potential of criticism from the press.
North Carolina’s lax public records laws were highlighted in a recent Charlotte Observer story that quoted Joanne Hager, a Lincoln County resident who forced a change in the county’s email policy after winning a court case a few years ago. The Observer story focused on a report from the Center for Public Integrity that awarded North Carolina an “F” for its weak access to public records laws and said South Carolina was the worst state in the nation.
While the report is essentially right about just how backward the Carolinas are in this regard, its methodology is a disaster and tends to paint all states as needing serious improvement. The Center of Public Integrity apparently advocates a state agency dedicated to enforcement of records, similar to one that exists in Connecticut. While that might be a good idea, it misses the point. A world of difference exists between states where the public’s right to public information is backed up by penalties for noncompliance and the states like North Carolina where a corrupt public official can thumb his nose at the people and the law, saying, “So sue me.”
One of the problems in North Carolina has been a failure of the press to lobby effectively for the specific changes in these laws that are needed. We see ample lip service from supposed reformers in our General Assembly who say they want greater transparency, but most of that is meaningless without a strong statutory stick with which to whack those who don’t think they have to play by the rules.
Lawmakers who want to make a difference in helping the people limit government should look closely at laws like those in states like Florida that offer real consequences. What does North Carolina law need to promise those who try to keep the public in the dark?
Criminal prosecution to force rapid compliance.
Criminal penalties including fines and/or jail time.
Automatic loss of job or elective office.
Guaranteed court costs for plaintiffs who do win a public records case, with the bill sent to the officials responsible and not to the taxpayers.

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