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State appeals court says city has no standing to sue newspaper

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    News Media Update         NORTH CAROLINA         Freedom of Information    

State appeals court says city has no standing to sue newspaper

  • The North Carolina Court of Appeals ruled that the City of Burlington may not file a lawsuit against a newspaper that sought access to a city council meeting under the North Carolina Open Meetings and Public Records Acts.

Sep. 13, 2004 — Government entities cannot file lawsuits against newspapers in certain open meetings and public records disputes under state open government laws, the North Carolina Court of Appeals ruled last week.

The City of Burlington sued The Alamance News after the newspaper asserted its rights under open government laws.

The controversy began in July 2002, when the Burlington City Council voted to hold a closed meeting to discuss pending litigation with its attorneys, as permitted by state law. The purpose of closed meetings in this context is to allow for confidential communications and attorney-client privilege.

Reporters, including Jay Ashley from The Alamance News , left the room but later learned that Sonny Wilburn, president of the county Chamber of Commerce, had been permitted to remain for the closed meeting.

Alleging Wilburn was a third party whose presence violated the attorney-client privilege that the city claimed justified the closure, The Alamance News’ publisher, Tom Boney, objected to the meeting, saying it violated the North Carolina Open Meetings Act.

Boney repeatedly requested minutes of the meeting, arguing that because the meeting should not have been closed, the minutes must be public under the North Carolina Public Records Act. The city refused to release the minutes and in September 2002 filed a declaratory judgment action against Boney Publishers Inc.

Boney Publishers challenged the government’s standing to bring such a lawsuit saying that it undermined North Carolina open government statutes. The publisher argued that the public would be afraid to exercise its open government rights if the government could respond by forcing them into time-consuming, expensive litigation.

Superior Court Judge James C. Spencer Jr. disagreed with Boney Publishers and issued an order allowing the city’s action in November 2002. Boney Publishers appealed the decision to the North Carolina Court of Appeals.

In reversing the trial court’s order, Judge Wanda G. Bryant, writing for a unanimous three-judge appeals panel, cited the statutory language of the Open Meetings and Public Records Acts, which grants the right to sue to the party claiming that a violation has been committed. Because it was the City of Burlington’s own statutory compliance at issue, and it was therefore claiming that a violation had not been committed, the City of Burlington did not have the right to sue.

Furthermore, the judge wrote, from a policy perspective, “[a]llowing a governmental agency to bring a declaratory action against someone who has not initiated litigation will have a chilling effect on the public, in essence eliminating the protection” the statute offers.

In 2002, the Supreme Court of California, in Filarsky v. Superior Court , issued a similar rule in a case involving the California Public Records Act.

(City of Burlington v. Boney Publishers, Inc.; Media Counsel: Amanda Martin, Everett, Gaskins, Hancock, & Stevens, LLP, Burlington, N.C.) RL

© 2004 The Reporters Committee for Freedom of the Press

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