FOREWORD

In North Carolina, public access to information about the workings of government is provided primarily through the Open Meetings Law (G.S. §§ 143-318.9 through 143-318.18 (1991)) and the Public Records Law (G.S. §§ 132-1 through 132-10 (1995)). These two statutes, coupled with a tradition of tenacity and ingenuity on the part of the state's newspapers and a deeply entrenched sense of entitlement on the part of the state's citizens, open many meeting rooms, files and databases that otherwise would remain closed. At the same time, both statutes include ambiguities and weaknesses that provide fertile ground for disputes and disagreements between citizens who seek information and public officials who want to conceal it. In many respects, therefore, the Open Meetings Law and the Public Records Law define not the rules of the game, but the playing field on which the access game is played.

Because North Carolina has no official legislative history, the origins of and motivations for the state's two "sunshine laws" are, ironically, shrouded in historic mist. The Public Records Law dates from 1935. The principal purpose of the original statute was the preservation of public records; the preamble to the act, which was ratified as Chapter 265 of the 1935 Session Laws, lamented that the state's failure

to make systematic provision for the preservation and availability of public records has resulted in untold losses from fire, water, rats and other vermin, carelessness, deliberate destruction, sale, gifts, loans and the use of impermanent paper and ink . . . .

The basic access provisions have remained little changed since their enactment. A significant amendment occurred in 1975, when Common Cause and other groups successfully supported an amendment to extend the law to computerized records and other non-traditional forms of data storage and retrieval. The most recent amendments took great strides to address the issues of pricing for copies of records and the timing of responding to requests.

The Open Meetings Law was originally enacted in 1971 as part of the wave of "open government" reform of the late 1960s and early 1970s that included the federal Freedom of Information Act.

Although the original Open Meetings Law required the "governing and governmental bodies" of the state and its political subdivisions to conduct their "official meetings" in public, it did not expressly require that notice of such meetings be given in advance. This anomaly led the North Carolina Court of Appeals to hold in a 1976 case that a public body was required to give "reasonable" notice of its meetings — a standard as to which ordinary citizens and public officials clearly would and did differ. See, e.g., News & Observer Publishing Co. v. Interim Board of Education for Wake County, 29 N.C. App. 37, 223 S.E.2d 580 (1976), in which the Court of Appeals held that, while one hour's notice of a school board meeting was unreasonably short, a 48-hour notice requirement imposed by the trial court's injunction was unreasonably long. One year later, the North Carolina Supreme Court ruled that a meeting of the faculty of the School of Law at the University of North Carolina was not covered by the Open Meetings Law because the faculty was neither a "governing" or "governmental" body of the state. Student Bar Association v. Byrd, 293 N.C. 594, 239 S.E.2d 415 (1977).

As a direct response to the shortcomings of the Open Meetings Law revealed by these two decisions, the North Carolina Press Association and the North Carolina Association of Broadcasters mounted a major lobbying effort to improve the law in the 1979 General Assembly. The efforts were largely successful, in that the revised Open Meetings Law contained extensive and detailed provisions for public notice of regular, special, and emergency meetings; detailed provisions authorizing the broadcasting and recording of public meetings; and improvements in the provisions relating to injunctive relief.

The Open Meetings Law remained essentially unchanged from 1979 until 1986, when the North Carolina Press Association again spearheaded an effort to add a new remedy whereby a court could declare null and void actions of a public body "taken, considered, discussed, or deliberated" in violation of the law. This "voidability" remedy, which was vehemently opposed by local government groups and the North Carolina Hospital Association, was viewed as a prophylactic provision, in that it would be used primarily to force corrective action. The limited experience with the provision since its enactment suggests that this view was correct.

The North Carolina Open Meetings Law includes the following forceful policy statement:

Whereas the public bodies that administer the legislative, policy-making, quasi-judicial, administrative, and advisory functions of North Carolina and its political subdivisions exist solely to conduct the people's business, it is the public policy of North Carolina that the hearings, deliberations, and actions of these bodies be conducted openly.

Ironically, the General Assembly, which promulgated the foregoing policy statement, was effectively exempted from the law until 1991, because a section of the Open Meetings Law (since repealed) provided that legislative committees and subcommittees had the "inherent right" to hold an executive session to prevent personal embarrassment or "when it is in the best interest of the state." Moreover, while the rules and procedures adopted by the House and Senate resulted in the legislative process being generally accessible and open, the General Assembly lapsed into a habit of having an unofficial, off-the-books group of powerful legislators meet in secret to formulate key details of the state budget. Editorial pressure curtailed this process for a few years, but in recent sessions it has emerged again.

In 1994, the statute was further amended to broaden the definition of a public body; reduce the number of justifications for closed sessions; institute procedural safeguards when a public body goes into closed session; require minutes be kept of all meetings — open or closed; expose public officials to personal liability for attorneys’ fees if they violate the law; establish a procedure for obtaining an expedited hearing on alleged violations; and include constituent institutions of the University of North Carolina within the ambit of the Open Meetings Law.

In 1996, the North Carolina Supreme Court ruled in Maready v. City of Winston-Salem, 342 N.C. 708, 467 S.E.2d 615 (1996), that recordation of the single word "discussion" constituted full and accurate minutes of a closed session. In response, the General Assembly further amended the law to require that "[w]hen a public body meets in a closed session, it shall keep a general account of the closed session so that a person not in attendance would have a reasonable understanding of what transpired. Such accounts may be a written narrative, or video or audio recordings." G.S. § 143-318.10(e).

Most elected state officials give considerable lip service to the concept of open meetings and public records, and many provide substantive support for improvements in the statues. On the other hand, the depth of commitment is reflected in the fact that almost all members of the General Assembly (including some who have been advocates for the principles of open government) are adamantly opposed to imposing civil penalties or criminal fines on public bodies or public officials who violate the Open Meetings Law or the Public Records Law. Since there also is general agreement that district attorneys would almost never choose to prosecute such violations even if criminal sanctions were available, proponents have chosen to support remedies which can be enforced by "any person" who is willing to institute suit.

The 1995 amendments to the Public Records Law added a strong policy statement in § 132-1(b):

The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people. Therefore, it is the policy of this state that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law. As used herein, 'minimal cost' shall mean the actual cost of reproducing the public record or public information.

Among other recent, significant changes are provisions defining particular criminal information as public information; a prohibition against asking a requester for what purpose he seeks a record; a requirement that public agencies provide access to non-confidential information that may be commingled with confidential data; a requirement that agencies maintain indexes of their databases; a narrower definition of "actual cost" of producing a public record; and better judicial remedies for violations of the law.

The principal public support for the protection and improvement of the Open Meetings Law and the Public Records Law in recent years has been provided by the North Carolina Press Association and the North Carolina Association of Broadcasters. The North Carolina League of Municipalities, the North Carolina Association of County Commissioners, and the North Carolina Hospital Association repeatedly oppose measures to strengthen the Open Meetings Law and Public Records Law.

In 2004 and 2005, the North Carolina appellate courts ruled that government agencies may not use either the Public Records Law or the Open Meetings Law as a sword by suing private citizens for a declaratory judgment to resolve disputes over the proper interpretation of the law. The courts held that both statutes were enacted for the benefit of the public and that allowing governmental bodies to sue would discourage citizens from seeking access to records and meetings and pervert the purposes of the statutes. McCormick v. Hanson Aggregates Southeast Inc., 164 N.C. App. 459, 596 S.E.2d 431. cert. denied and appeal dismissed, 359 N.C. 69, 603 S.E.2d 131 (2004). See also City of Burlington v. Boney Publishers Inc., 166 N.C. App. 186, 600 S.E.2d 872 (2004), disc. rev. improvidently allowed, 359 N.C. 422, 611 S.E.2d 833 (2005).

Attorney General Roy Cooper recently published a Guide to Open Government and Public Records (“AG Guide”), in which he summarizes and reiterates the basic principles of open government such as the strong preference to interpret in favor of openness.