Winston-Salem Journal

For many North Carolinians seeking access to government documents, the state’s public-records law is meaningless. A bureaucrat or elected official can refuse to release a public document, and the citizen cannot afford the legal costs associated with suing for its release.

That obstruction of open government would change significantly if legislation before the N.C. House of Representatives becomes law. House Bill 1134 would make it almost certain that citizens who successfully sue for records would get reimbursed for a reasonable amount of attorneys’ fees. The bill would also establish an “open government unit” within the N.C. Department of Justice that would mediate disputes over both public records and open meetings long before the case ever goes before a judge.

North Carolina’s public-records law guarantees access to the vast amount of information that state and local governments control. The underlying philosophy is that open government promotes democracy. The government belongs to each of us. Our government creates records using our tax money. Therefore, the records belong to every citizen, and access to those records should be assured unless there is a legitimate, statutory reason for keeping the record from public view.

Many North Carolinians learn the hard way that public philosophy and government practice are often two very different things. Agencies regularly deny access to records that are, by law, public. The only recourse citizens – or in many cases, the press – have is a lawsuit.

Rep. Deborah Ross, D-Wake, one of the bill’s co-sponsors, recently told the Journal that the beauty of the new legislation is the possibility that it will keep most disputes out of court. The new unit in the Justice Department will not only help settle disputes between citizens and government agencies, it will also work to better educate government workers about the public-records and open-meetings laws. That effort, alone, could go a long way toward solving the problem.

It won’t solve it entirely, however. Mediation won’t solve every dispute, either. For those cases not resolved through mediation, citizens can go to court. If they win, they’ll get their attorney fees reimbursed. If they lose, they won’t.

As North Carolina law stands now, government agencies face no consequences for failing to provide access to public records. If this bill becomes law, bureaucrats and public officials will have something to explain to taxpayers. We hope that possibility will help change agency attitudes toward public-records requests.
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More than half of North Carolinians are unaware that state laws exist to allow public access to government records, according to the latest Elon University Poll, but nearly all respondents feel democracy is best when it operates openly.
 
The poll, conducted March 15-19, surveyed 620 North Carolina residents and has a margin of error of plus or minus 4.0 percentage points. Respondents were polled during Sunshine Week, an effort by the American Society of Newspaper Editors to educate citizens about open government and access to records.
           
Sixty-three percent of respondents said they are not familiar with Sunshine Laws – rules for open meetings and access to government records – in North Carolina. Despite the lack of awareness, most citizens see the value of public access to records.  Sixty-eight percent said this kind of access is “very important,” while 88 percent feel open records and meetings keep government operations honest. 
 
Sixty-nine percent of respondents rejected the notion that closed records and meetings allow government to get things done more effectively.  While the majority of citizens advocate for government transparency, 77 percent feel exceptions should be made if such action will aid the war on terrorism.

More than half of respondents (52 percent) have attempted to gain access to public documents in the past.  Of these individuals, 83 percent were successful in their efforts.
 
Issues facing North Carolina and approval ratings

The economy remained the top concern facing North Carolinians surveyed as part of the same poll, with 44 percent of residents identifying it as the most vital issue facing the state. Twenty-six percent of respondents identified jobs and unemployment as the most significant issue for North Carolinians.
 
Most North Carolinians approve of President Obama’s handling of his job, the economy and the war in Iraq.
 
Sixty-one percent of residents say they approve of the way Obama is performing.  Fifty-eight percent of respondents approve of President Obama’s handling of the economy, while 35 percent disapprove.
Obama has gained the support of North Carolinians in regard to the war in Iraq, with 65 percent approving of how he is handling the conflict. Even with this support in place, 44 percent felt that the nation is more at risk of future terrorist attacks.
 
North Carolinians believe Obama’s plan to withdraw most U.S. troops from Iraq is appropriate, with 68 percent supporting the policy.  When asked whether the war in Iraq was worth fighting:

• 54 percent of respondents indicated it was not worth fighting.
• 40 percent stand behind the war.

“Despite the gloomy outlook on national affairs, North Carolinians maintain their confidence in the new president’s leadership on both the economy and the war in Iraq,” said Hunter Bacot, director of the Elon University Poll.
           
Fifty three percent of North Carolinians approve of the job the Democratic members of the state General Assembly are doing, with 26 percent disapproving. Conversely, the Republicans received an approval rating of 41 percent, while 37 percent of those polled disapproved of their performance.
 
Respondents were asked about the effectiveness of North Carolina Senate and House leadership. The results were as follows:

• Leadership in the N.C. House of Representatives
• 50 percent approve of the job by House leadership
• 23 percent disapprove of the job by House leadership
   
• Leadership in the N.C. Senate
• 50 percent approve of the job by Senate leadership
• 25 percent disapprove of the job by Senate leadership
   

North Carolinians also asked about the performance of their House and Senate representatives in the state legislature. The results were as follows:
 
State House Representatives

• 56 percent approve of their performance
• 10 percent disapprove of their performance
   
  State Senate Representatives
• 58 percent approve of their performance
• 18 percent disapprove of their performance

WASHINGTON – The Obama administration is ready to tell federal agencies to release records to the public unless foreseeable harm would result, a Justice Department official said Thursday.

Attorney General Eric Holder has approved new guidelines fleshing out President Barack Obama’s Jan. 21 order to reveal more government records to the public under the Freedom of Information Act, the official said. This person spoke anonymously because the official announcement has not been made.

The guidelines were expected to be released later Thursday, amid Sunshine Week, an annual national observation by journalism groups and other organizations to promote open government and freedom of information.

The new standard essentially returns to one issued by Attorney General Janet Reno during the Clinton administration. It would replace a more restrictive policy imposed by the Bush administration under which the Justice Department would defend any sound legal argument for withholding records.

Justice is responsible for government-wide guidance on how to implement the records law because it defends agencies in court if they are sued by people who disagree with a decision to withhold records. Under the Holder standard, Justice lawyers would not defend a decision to withhold records unless their release could be shown to produce foreseeable harm.

The new standards were also expected to encourage agencies to release more documents where the law leaves the decision to their discretion – an amplification of Obama’s order that they adopt a “presumption for disclosure.”

The standards could also affect the outcome of a dozen or more pending lawsuits, including ones to obtain the legal rationales behind Bush administration anti-terrorism tactics like wiretapping Americans without a warrant and harsh interrogation of terrorism detainees.

It was not immediately clear whether all pending lawsuits would be reviewed under the new standards. If not, the requesters could just file new freedom of information act requests for the same data after the new guidelines take effect.

The Freedom of Information Act dates back to 1967. Since then, Democratic and Republican administrations have engaged in a three-decade pingpong game over how it should be enforced.

In May 1977, President Jimmy Carter’s attorney general, Griffin Bell, issued guidance to err on the side of releasing information and said Justice would only defend withholding records whose release could cause “demonstrable harm.” In 1981 under President Ronald Reagan, Attorney General William French Smith reversed that; he told them when in doubt – withhold – and Justice would defend any “substantial legal basis” for withholding records.

Under Clinton, Reno reversed it again; she told agencies their presumption should be for release and she would only defend withholding information to prevent “foreseeable harm.”

But President George Bush’s first attorney general, John Ashcroft, went back the other way in October 2001. He told agencies that he would defend any sound legal justification for withholding documents.

Congress later sought to undercut Ashcroft’s order, passing legislation in December 2007 that toughened FOIA by establishing a hot-line service to help people requesting information deal with problems they may encounter and an ombudsman to provide an alternative to litigation in disclosure disputes. But money to pay for the ombudsman was only recently passed by Congress and signed by Obama.

E-mail messages to a most government officials are public records, available for anyone to view, but for state legislators there are exemptions to the state’s public records law, the N&O reports.

RALEIGH, N.C. – A new survey by The Associated Press shows North Carolina among the best states at posting public records on the Internet.

But those records are sometimes hard to find.

The Sunshine Week 2009 Survey of State Government Information examined how all 50 states provide online access to 20 different kinds of records, ranging from consumer complaints to teacher certifications. North Carolina ranked third.

The survey found the Department of Transportation’s Web site lists status updates for every road project and the Attorney General’s Office allows users to file consumer complaints.

But there are inconsistencies in the type and depth of public records. The Department of Health and Human Services’ Web site doesn’t post comprehensive details about the safety inspections at places such as nursing homes.

A NEW DAY

Memo to: President-elect Obama.

Subject: Openness and Transparency in Government

Mr. President-elect:

Our purpose in writing is to request that you make a key element of your “change” agenda a reversal of the Bush administration’s disregard of the Freedom of Information Act and its general disrespect for the public’s right to know.

All indications are that you revere the importance to our democracy of openness and transparency in government. Your co-sponsorship of a federal shield law for reporters, which may reach your desk next year, is evidence that you understand that journalists need clear protection from being forced to identify confidential sources if the public is to learn about the most serious cases of corruption and abuse in government and industry.

We also like your apparent willingness to talk directly to the people and be questioned openly by the press. You do have a tendency, though, to want to manage the flow of information. That happened with your campaign, and it’s happening now with your transition team. We understand the desire to maintain a certain image of authority and decisiveness. That’s important in leadership. But the legitimate control of information, say, to avoid sending mixed signals and confusing the public, can quickly devolve into secrecy. And we know where that story usually ends.

The Sunshine in Government Initiative and the American Society of Newspaper Editors have made a strong statement in support of open government to your transition team and to members of Congress. We think the following SGI recommendations make sense, and we urge you to act on them:

1. Restore the presumption of disclosure across the executive branch. Federal agencies should exercise their discretion to withhold information under the Freedom of Information Act only when a foreseeable harm would result from disclosure.

2. Create an independent, online ombudsman to help citizens access their government.

3. Ban agencies from proposing or endorsing unnecessary statutory exemptions from disclosure.

4. Speak on the record, and urge your senior deputies and aides to do the same, in all statements about policy and current news about public matters.

Your successful campaign will likely go down in history as one of the most cleverly organized and brilliantly executed. Your Internet strategy, according to The New York Times, has “rewritten the rules on how to reach voters, raise money, organize supporters, manage the news media, track and mold public opinion, and wage – and withstand – political attacks.”

That powerful use of the free flow of information should be the foundation of your administration’s policies regarding the public’s right to know. Such a change would be truly historic.

This editorial recently appeared in the Winston-Salem Journal.