Governments are pursuing the power to take citizens to court over access to reco

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http://www.newsobserver.com/news/story/2236221p-8616347c.html

 

Published: Mar 20, 2005

 

Cities, agencies seek right to sue

Governments are pursuing the power to take citizens to court over

access to records and meetings

 

By MATTHEW EISLEY, Staff Writer

 

State law gives you the right to see public records and attend

government meetings. But now the government wants the power to sue you

for asking.

 

North Carolina's cities and other government agencies are pursuing

that authority in two ways:

 

First, lawyers for local governments and the University of North

Carolina are talking about pushing for a new state law allowing

pre-emptive lawsuits against citizens, news organizations and private

companies to clarify the law when there is a dispute about providing

records or opening meetings.

 

Second, the city of Burlington is appealing a ruling last year by the

state Court of Appeals that said the government can't take people to

court to try to block their access to records or meetings.

 

Citizens can sue the government over records, the court said, but not

the reverse. The state Supreme Court takes up that case next month and

is expected to settle the issue.

 

North Carolina's League of Municipalities supports Burlington.

 

" It makes sense to ask a court what the law is when there's a dispute

about the Open Meetings Law, just like when there's a dispute about

anything else, " said Ellis Hankins, the league's executive director.

 

" We need to have open government, " he said. " But governments need to

operate. And there are unanswered legal questions. "

 

The cities say they are not interested in punishing people who

criticize policies or demand information. They say they only want to

use an ordinary tool often deployed in other kinds of legal disputes,

called a " declaratory judgment, " to let judges settle disagreements

about public access to records or meetings.

 

Urging the Supreme Court to forbid pre-emptive government lawsuits are

news organizations and civil rights advocates on the political left,

right and center. They include the state's newspapers and

broadcasters, the conservative John Locke Foundation, and the liberal

American Civil Liberties Union of North Carolina.

 

Many say they will also oppose any legislation that would give the

government that power, saying it would intimidate and punish

inquisitive citizens.

 

They say pre-emptive access lawsuits are undemocratic and contrary to

the state's policy of open government.

 

They also argue that such lawsuits penalize citizens for exercising

their First Amendment constitutional rights to criticize the

government and to ask it to address their concerns.

 

" Imagine that your daughter is part of a new busing plan, and you go

and ask for a copy of the plan, " said Raleigh media lawyer Amanda

Martin. " They say, 'You can't have it -- and we're going to sue you

for asking.' "

 

Testing the law

 

In the Burlington case, Alamance News publisher Tom Boney had

challenged the closing of a city council meeting to the public in

2002. Boney asked the city to disavow the secrecy and release minutes

of the meeting. And he said he might sue.

 

Burlington beat Boney to it.

 

At the time, no state statute or court ruling prevented the city from

doing that.

 

The city's lawsuit against the newspaper required Boney to spend money

defending it. The lawsuit also asked the judge to make Boney pay the

city's lawyer.

 

" A government body should not be permitted to bully citizens who

object to its actions or who argue for an interpretation of the law

that differs from the position taken by the public body, " the

newspaper's attorney, Raleigh media lawyer Hugh Stevens, said in a

recent court filing. " It is simply wrong for a public body to use the

blunt club of the judicial system to silence and intimidate those who

disagree. "

 

Stevens and Martin represent The News & Observer in open-government

matters.

 

No second opinion

 

Part of the problem is that state law provides no mechanism for cities

to get a court ruling in a dispute over access to records or meetings

other than to sue the people or companies seeking the information --

unless the requesters sue first. In some other states, cities can sue

the state attorney general to get a ruling.

 

In filings with the N.C. Supreme Court, Burlington and North

Carolina's other cities say they must be free to sue requesters for

declaratory judgment to resolve disputes.

 

But Stevens said there are only two recorded cases of that happening

in North Carolina: the Burlington case and one in Raleigh in which the

city sued a private company, Hanson Aggregates, in 2002 for seeking

the city attorney's records about a legal dispute between them. Last

year, the appeals court said Raleigh couldn't sue pre-emptively, either.

 

Stevens also noted that any government agency can ask the state

attorney general for an advisory opinion about applying the meetings

and records laws.

 

Burlington didn't do that in the newspaper case, said Noelle Talley, a

spokeswoman for the State Attorney General's Office. No government

agency has asked Attorney General Roy Cooper whether it is legal to

sue information requesters in declaratory judgment actions, she said.

 

Hankins said advisory opinions wouldn't help much.

 

" An advisory opinion is not binding on anyone, " he said. " A court's

judgment, on the other hand, is authoritative. "

 

Promoting openness

 

In its ruling against Burlington last year, a Court of Appeals panel

of three judges concluded that allowing the government to file

pre-emptive access lawsuits would create " a chilling effect on the

public. "

 

The court also ruled that requiring members of the public to defend

the lawsuits in lengthy court actions would undermine " the fundamental

right of every person to have prompt access to information in the

possession of public agencies. "

 

And such lawsuits, the appeals court suggested, would violate the aim

of state sunshine laws " of promoting openness in the daily workings of

public bodies. "

 

The Supreme Court is scheduled to hear the case April 19.

 

Staff writer Matthew Eisley can be reached at 829-4538 or

meisley.