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North Carolina Wants to Sue Public Record Seekers
March 25, 2005
PEN USA is concerned by the action being taken by lawyers for local governments and the University of North Carolina, who seek to make it legal in North Carolina for cities to preemptively sue citizens who ask for certain records. News agencies, lawyers, and others, can also be sued to block their access to public records.
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The state sees the measure as clarifying the laws about providing records or opening meetings. However, this law could have serious consequences and people from all over the political spectrum are against it. From the conservative John Locke Foundation to the more liberal ACLU, people argue that such lawsuits penalize citizens for exercising their First Amendment rights to criticize and address their concerns to the government.
In an Associated Press article (http://www.firstamendmentcenter.org/news.aspx?id=15007), Raleigh, NC media lawyer Amada Martin gave a chilling example of how the law could backfire. “Imagine that your daughter is part of a new busing plan, and you go and ask for a copy of the plan. They say, ‘You can’t have it and we’re going to sue you for asking.’”
PEN USA asserts that requesting - and suing - for public records is allowed under the First Amendment. If the state is legally able to preemptively sue a citizen for trying to get access to records, it will scare people away from asking for public records.
The measure is possibly in response to the Burlington, NC case in 2002. Newspaper publisher Tom Boney challenged the closing of a Burlington City meeting that he felt should be open. He talked of suing, but Burlington City sued him first.
In its lawsuit against Boney, the city asked him to pay all the legal fees and its lawyer, should he lose the case. However, the three-judge panel ruled that the city cannot premptively sue a citizen for peitioning for records or open meetings. The judges cited a “chilling effect” that could occur should preemptive suing by a city become legal in cases like this.
The proposed measure would have just such a chilling effect.
The state Supreme Court will review the case on April 19, 2005. PEN USA hopes the court will rule in favor the First Amendment rights of the citizens, so they will not be afraid to be sued for seeking public records.
“The availability of public records is a cornerstone of our democratic process,” says David L. Ulin, co-chair of PEN USA’s Domestic Freedom to Write Committee, and a writer and journalist who often uses public records in his work. “Without that, we jeopardize the transparency upon which a democratic society depends.”
Recommended Action:
Write the North Carolina Supreme Court, arguing that pre-emptive lawsuits might curtail the citizens’ First Amendment rights.
Supreme Court of North Carolina
Clerk’s Office
P.O. Box 2170
Raleigh, North Carolina 27602-2170