On Sunday, the Burlington-based Times-News ran my opinion piece in which I argue that North Carolina’s public records laws suffer from several fundamental flaws. The piece begins by noting that NC’s public records laws lack any real teeth when it comes to motivating state agencies to fulfill requests:
…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.
I then go on to propose three possible remedies.
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.