Just how far will state agencies go to prevent disclosure of public records? The latest technique adopted by governments have been to file suit against those submitting a public record request. Indeed, these agencies would rather see requesters in court, than accept or deny their requests. Generally, the lawsuits identify requesters as defendants, and assert that the government is under no obligation to disclose the records sought.
It is common for such claims to not pursue damage awards, yet in practice defendant requesters still take a hit to the pocket. As the moving party, the government does not have to pay the legal fees of requesters – even if a court finds that the disclosure request must be granted. Contrast this with the more common, and slightly less controversial, practice of persons suing the government for information requests that have been denied. In such cases, requesters are frequently able to recoup from the government what they have spent on attorney fees, provided they were successful at compelling the disclosure of the information.
The rationale offered by some government officials as to why requesters are being proactively sued is that it is nothing more than a nod to judicial discretion as being the ideal decider of what should be disclosed and what should not. Thus, the technique is simply a good faith effort at ensuring the right determinations are made in response to public record requests. Yet, government watchdogs see it as a thinly veiled effort at deterring people from exercising their right to seek information contained in public records. In sum, they emphasize that when barred from the possibility of recovering legal expenses, the relevant consideration in deciding to seek a public record becomes that of resources rather than a claim’s strength. Likewise, at least one court has identified the “almost inexhaustible resources” of governments as against requester defendants as one basis for holding that the right to sue in the context of public record requests belongs exclusively to the requester.
This raises the question of how proactive lawsuits by government agencies in North Carolina have been handled – and in short, they haven’t. The State’s public record law appears to make no reference to government bringing suits in such instances, nor does it look like the issue has been addressed by state case law. In Michigan, however, a bill was approved earlier this year that would make it “illegal for agencies to sue public records requesters.” But it is hard to say whether North Carolina State lawmakers will adopt a similarly express ban.
Governor Roy Cooper has shown support toward increasing government transparency, but has remained at odds with the Republican controlled state legislature over anything with even the slightest whiff of controversy. Moreover, if the legislature’s response to police body camera footage requests is at all telling of what would result if the issue were brought to the House floor, proponents of a more open government may be best advised to pursue a different course of action.
One such method of combatting proactive lawsuits, may be in arguing that they are essentially frivolous lawsuits, deserving of a court imposing attorney fees on the government when it is the losing party. However, Section 6-21.5 of the North Carolina General Statutes provide that “the court . . . may award a reasonable attorney’s fee to the prevailing party if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party in any pleading.” This is a pretty high standard to meet for requesters being sued.
In effect, requesters would have to establish that there was no real adversity between the parties in the case, and that the issue (whether the public record can be disclosed) was of no real substance – a tall order when one considers the myriad of ways in which the government could craft a claim that appears legitimate.
Furthermore, the law makes clear that “[a] party who advances a claim or defense supported by a good faith argument . . . may not be required under this section to pay attorney’s fees. This deals another blow to requesters seeking to recoup their legal costs, because in practice even if a requester is able to prove that the government’s lawsuit is lacking in adversity and an issue of substance, the government may still be able to skirt by free of blame, by arguing (as noted above) that the claim was simply an effort to seek the wisdom of judicial discretion, or whatever else along those lines that sound good.