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Court drops case over government suing records requesters

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NEWS MEDIA UPDATE   ·   NORTH CAROLINA   ·   Freedom of Information   ·   May 12, 2005


Court drops case over government suing records requesters

  • The state Supreme Court’s last-minute refusal to hear an appeal in an open government lawsuit lets stand an intermediate appellate court ruling that the government has no standing to preemptively sue open records requesters.

May 12, 2005  ·   Government officials cannot preemptively sue requesters in open meetings and open records disputes, after the North Carolina Supreme Court on May 5 retracted its earlier decision to consider a unanimous lower court ruling invalidating the practice.

The high court’s four-word reversal of its earlier grant of appellate review came a little more than two weeks after oral arguments in the case.

The litigation began in 2002 when The Alamance News Publisher Tom Boney suspected that the Burlington City Council improperly used attorney-client privilege to meet in executive session. A third party’s presence during the secret meeting made it impossible that confidential attorney-client communications took place, he alleged. After Boney repeatedly asked for the meeting minutes, the city sued the newspaper.

A trial court ruled in favor of the city, and the newspaper appealed on the issue of whether the city ever had standing to sue in the first place.

The state Court of Appeals ruled in September 2004 that government entities cannot sue citizens in disputes over access to meetings or records. The opinion, written by Judge Wanda G. Bryant, echoed a similar public records decision she wrote earlier that year.

Looking to language from the open records and open meetings laws, Bryant ruled that the General Assembly seemed to have created only standing for persons denied access to government, but not governments denying access to requesters.

Requiring access requesters “to defend civil actions they might not otherwise have commenced” creates a chilling effect on the promotion of “openness in the daily workings of public bodies,” Bryant wrote.

The state press and broadcasters associations jointly filed a friend-of-the-court brief before the Supreme Court to support the news media’s interest. The American Civil Liberties Union and the John Locke Foundation also submitted a joint brief supporting a bar on the government’s right to sue in such cases.

Boney told The (Raleigh) News & Observer last week that he had spent $45,000 on the lawsuit, and that he would ask Burlington to pay his costs.

(Burlington v. Boney Publishers, Inc.; Media Counsel: C. Amanda Martin; Raleigh, N.C.)RL

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