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Without public insistence that government actions be exposed to the sunlight, those who prefer shadows will have an easier time remaining in the dark.

Close the open records loopholes 

Last March, N.C. Department of Health and Human Services spokeswoman Debbie Crane created a major flap when she disclosed that Gov. Mike Easley's press chiefs had routinely instructed agency flacks to delete e-mail correspondence to his office. The point, Crane charged, was to shield Easley from scrutiny by eliminating public records.

In the flurry of media coverage that ensued, Department of Transportation Communications Director Ernie Seneca freely admitted to The News & Observer that he deleted almost all of his e-mail correspondence at the end of each day.

This startling revelation—clearly a violation of the state's public records law—was especially troubling given DOT's long history of cronyism, mismanagement and fiscal irregularities. Instead of disciplining Seneca or ordering him to comply with the law, however, DOT Secretary Lyndo Tippett informed agency employees that they could continue to expunge e-mails at their discretion.

President Barack Obama has already taken steps to make federal records more available to the public and usher in a new era of executive-branch transparency. But as the Easley e-mail controversy again illustrated, North Carolina has a long way to go to ensure that the public knows how state and local officials are acting on their behalf.

The law states that all communications used to transact public business are to be considered public records and must be retained and made available upon request unless they fall under a specific exemption. But Tippett's directive was consistent with Easley administration policy—laid out in guidelines published by the Department of Cultural Resources and officially adopted by numerous state agencies and institutions—that allows e-mails to be deleted if they are of "short-term" use or no longer have "reference value." Making that determination is left up to individual employees, which by any measure constitutes an open invitation to abuse by those with something to hide and creates a gaping hole in the public's right to know.

A coalition of media outlets sued Easley for violations of the open records law, including the e-mail policy, but the suit is still winding its way through the courts and remains unresolved. Crane, one of the state's most dedicated public officials, was fired for her disloyalty. Meanwhile, no one knows how many details of the state's business are being wiped from hard drives or otherwise hidden from view.

As any reporter will tell you, accessing public records is a hit or miss proposition. Some state and local agencies readily comply with the law and provide full records on request, while others create obstacles that can be difficult to bypass or simply refuse to turn over records. Such obstruction can sometimes result from ignorance of the law, resource constraints or legitimate concerns over improper disclosure and can be resolved amicably. But officials sometimes suppress records for less benign reasons, or no reason at all. In Union County, were the county animal shelter was sued over its euthanasia practices, animal welfare organizations recently retained lawyers to obtain shelter records that have been withheld without explanation.

And as has been shown repeatedly, a corollary often exists between an unwillingness to provide documents and improper conduct or other problems that those documents would reveal.

The state's open records law offers sanctions against officials who willfully destroy or withhold public records, but those remedies are weak to the point of irrelevance. The destruction of public documents is a criminal misdemeanor punishable by a small fine, but no one has been prosecuted in North Carolina for that offense. Deliberately withholding records carries no criminal penalty; citizens can pursue open-records cases in court, but the statute gives judges the discretion to award attorneys fees even if the plaintiffs win.

"As a practical matter, there aren't any consequences" for violating the law, says Raleigh attorney John Bussian, who has been in the thick of many open records tussles in North Carolina.

When the town of Kitty Hawk hired a private firm to handle its legal work, the town's legal fees ballooned to more than $1 million over three years. The Outer Banks Sentinel requested detailed copies of the firm's billing statements but were turned down. The Sentinel sued in 2004 and ultimately won its case in a 2007 state Court of Appeals ruling, but not before racking up more than $135,000 in legal fees. The billings proved excessive and the firm was replaced, but the paper only recovered $95,000 of its investment and had to eat the remaining $40,000.

The ability of the media to absorb such losses has diminished significantly in the current economic climate and will deter their enthusiasm for pursuing legal action in the future, but especially if recovery of attorney's fees can't be guaranteed. Sandy Semans, managing editor of The Sentinel and a fierce advocate of open government, says that her paper is not currently in a position to undertake a similar fight under any circumstances. "In these tough times, I no longer have a legal line item," Semans says.

If the media can ill afford to engage in court battles over public records, ordinary citizens can hardly be expected to risk their own money to get access to public information that has been improperly denied them. Chatham County resident Gretchen Lothrop won a suit against the county Board of Elections in 2006 that involved public records as well as violations of the state open meetings law, but the judge awarded her only 10 percent of the $35,000 legal bill, sticking her with the balance.

David Woronoff, publisher of The [Southern Pines] Pilot and incoming president of the N.C. Press Association, says the law needs to be changed to better favor transparency and accountability. "We need to have some mechanism to give teeth to our open government laws," Woronoff says, "and it's just not there now."

A bill that would require full recovery of legal fees for plaintiffs who win open records suits was passed by the state Senate last session but was blocked in the House by Speaker Joe Hackney, who also impeded passage of a similar provision in 2005. Hackney has frequently expressed reservations about taking discretion away from judges and thinks that the Kitty Hawk and Chatham County decisions were anomalies. Semans disagrees, and has compiled a list of at least half a dozen additional cases with parallel results.

The bill will likely be reintroduced this session; Hackney spokesman Bill Homes says the Speaker doesn't necessarily mind automatic recovery of fees as long as judges can limit them if they're excessive or unfair. How automatic recovery and judicial discretion can be reconciled is unclear, but if Hackney continues to thwart the ability of winning plantiffs to recover their full costs, it would be unfortunate and contrary to the national trend: Twenty-five states have passed automatic recovery laws, with no sign of the ill effects opponents have predicted.

If anything, Hackney should be encouraging an expansion of the state's open records law to include the recovery provision as well as access to personnel files and other records that is guaranteed in other states but not here; after all, he owes his legislative position in part because of the transgressions of his predecessor, the disgraced Jim Black.

During her campaign, Gov. Beverly Perdue frequently promised to expand access to government records. Talk is cheap, and Easley said many of the same things during his tenure, but those who know Perdue say they believe that her actions will follow her rhetoric. "She promised transparency, and we will take her at her word," says Woronoff. "I have seen nothing to suggest that she will not honor her campaign pledge."

It shouldn't take long for Perdue to take the first and most needed step in that direction, closing the e-mail loophole by ordering unequivocally that all agency e-mails under her jurisdiction must be retained and archived in a way that maximizes public access. In conjunction with a new policy, Perdue must also mandate and fund the creation of compatible electronic archiving systems to eliminate the argument that current systems make storage and filing a burdensome proposition.

One other factor in the open-government debate would perhaps help Hackney, Perdue and other elected officials tilt toward openness: public pressure. While most citizens have a general understanding of the conceptual importance of transparency, few ever attempt to access public records and are unaware of the difficulties built into the process. And they often miss the direct connection between scandal and the documents that bring it to light. Accountability begins with transparency, but without public insistence that government actions be exposed to the sunlight, those who prefer shadows will have an easier time remaining in the dark.

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