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Babe Ruth was hanging up his cleats, Franklin Delano Roosevelt was president and gas was 10 cents a gallon when the North Carolina Public Records Act was written.
Many sections of the state sunshine law have been added since the General Assembly first enacted it in 1935, and many more have been revised, but the original wording that remains is causing consternation for records requesters, lawyers and government officials.
The 82-year-old statute is showing some rust, says Elliot Engstrom, an attorney who teaches at the Elon University School of Law. Engstrom knows a thing or two about open records — before joining Elon’s faculty, he sued state agencies over public documents as lead counsel for the Civitas Institute’s Center for Law and Freedom. His efforts earned him the N.C. Open Government Coalition’s 2017 Sunshine Award for Advocacy.
In a broadcast interview for the John Locke Foundation’s Carolina Journal Radio, Engstrom pinpoints three shortcomings of the state sunshine law. First, it isn’t always clear who has official custody of the records a citizen is requesting.
“The public official in charge of an office having public records shall be the custodian thereof,” states General Statute 132-2, which was written in 1935.
Sounds pretty straightforward, but government officials, lawyers and judges can’t always agree on who the lawful custodian is — and, therefore, who can be named as a defendant in a public records lawsuit.
“This is important,” Engstrom said, “because if you don’t sue the proper custodian, your lawsuit is dismissed.”
Ambiguity is an obstacle for people and groups requesting public records, but it’s not helping the agencies charged with maintaining them either.
“One of the goals that I look for in good public records laws is predictability and efficiency,” Engstrom said. “So, for example, if we don’t know who the right custodian is, we might spend a year and a half litigating a case, then have it dismissed and have to start over. That’s not a good use of taxpayer money. That’s not a good use of government time.”
Engstrom would fix this flaw by requiring agencies to identify their custodians in the same way process agents are formally designated and allowing agency heads to delegate that role to a subordinate such as a public information officer.
The second problem: There’s no disclosure deadline and no established period of time after which a delay can be treated as a denial. The law says records requests should be fulfilled “as promptly as possible.”
“This presents this big, murky area of ‘Well, what if my public records request has just been sitting there for 9 months? What can I do?’” Engstrom said. “At least one court has found that you can do nothing...At the moment, there is no cause of action for delayed access to records.”
The other big bugaboo? A provision to promote voluntary compliance with the law by making those who withhold public records pay plaintiffs’ legal fees has never been invoked because appellate courts haven’t ruled on the threshold required to trigger it.
A records requester who “substantially prevails” in court can “recover its reasonable attorneys’ fees if attributed to those public records,” the law says.
“Nobody knows what that means because it has not been litigated at all,” Engstrom explained.
The lack of case law shows relatively few records requesters are fighting the good fight to bring more of the public’s business into the sunshine.
“I definitely don’t feel like we’re near that danger point of having too many public records lawsuits,” Engstrom said. “If anything, we don’t have enough.”
As open government advocates, there are many changes to the public records law we’d like to make that would draw opposition from the city, county and state government lobbies. Making police body camera videos public and disclosing more information about employee disciplinary actions, for starters.
Engstrom’s rewrites, though, are largely technical corrections. They’re uncontroversial. And they would benefit the keepers of public records along with the seekers.
“Time and money are precious resources for governments. And if they’re spending time and money litigating cases on things like who substantially prevails, who is the custodian, et cetera, that’s a waste,” said Engstrom. “ Why can’t we just say the custodian is this person, name them by statute?”
State lawmakers should address these issues when they reconvene in Raleigh on Wednesday.