Clarity, Enforcement Needed In State Public Records Laws | Eastern North Carolina Now

    Publisher's note: This post, by Elliot Engstrom, was originally published in the Corruption & Ethics section of Civitas's online edition.

    Last week, the Civitas Institute dropped our public records lawsuit against the Alamance County Board of Elections and Alamance County attorney. To the credit of the board and county attorney, the entire issue was resolved in less than four months. Unfortunately, this is lightning fast compared to the turnaround time for some state agencies.

    Access to public records is a basic requirement of any democratic system. Through public records requests, North Carolina citizens can keep their elected officials accountable by keeping close tabs on the activities of state and local governments. Trust, but verify.

    Unfortunately, North Carolina's public records laws have proven to be an impediment, rather than a gateway, to access. Despite lofty statements promising broad access, the majority of our law is dedicated to placing limitations on requestors of public records that allow government agencies to duck, dodge, and delay. Of the 15 bills introduced at the General Assembly this session affecting records access, only two — Senate Bill 636 and Senate Bill 633 — make any positive strides towards transparency.

    Further, and most problematically, the law allows private citizens to seek assistance from a court in only one situation — when a government agency denies a records request. This creates a murky legal swamp where a government agency can take no action on a records request, while not "officially" denying it, for months, if not years, without fear of judicial scrutiny. Various agencies across our state have taken restrictive and mutually incompatible stances regarding disclosure, to the point that it can be difficult to figure out how to even request records. Our recent disagreement with Alamance County Attorney Clyde Albright notwithstanding, he took no time in responding to our concerns at every step of the process. This line of communication is often a luxury that records seekers do not enjoy.

    The lack of a clear enforcement mechanism for the majority of North Carolina's public records laws has understandably led to confusion for everyone involved. However, there are several ways that this confusion could be addressed.

    First, local governments could request opinions of the state Attorney General. While many such opinions do exist, these almost always deal with narrow issues and specific situations rather than the nature of public records in general. Still to be weighed in on are such issues as how local agencies can legally delegate their public records duties, whether local governments can be required to scan paper records into electronic format, and what constitutes an unreasonable delay in fulfilling a records request.

    Second, the General Assembly could clarify what actions beyond an official denial nonetheless constitute denial of a records request. If an agency waits six months to fulfill a simple request, is this a denial? What if an agency provides records in a different format than requested, or fails to provide a breakdown of costs before making copies? May such actions be treated as denials?

    Third, private attorneys could allege violations under the Uniform Declaratory Judgment Act and then vigorously prosecute their claims, even after fulfillment of the underlying requests. This is the least savory option, but may prove necessary if clarity is not otherwise provided. Should this occur, such attorneys should make an effort to focus on clarifying the law, rather than simply attacking government officials.

    Public records law is a critical issue that affects the lives of all North Carolinians, whether directly or indirectly. Both governments and private citizens have an interest in ensuring that public records are readily available and efficiently provided. Unfortunately, our current records regime has led to an unpredictable playing field where private citizens can be made to jump through hoops prior to receiving records. We at the Civitas Institute will continue to push for increased transparency and clarity in our state's public records laws, to the benefit of government agencies and citizens alike.

    A version of this article originally appeared in the Burlington Times — News