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This story originally appeared here and is published by Carolina Public Press through a content-sharing agreement with The Charlotte Observer.
By Chelsey Dulaney, email@example.com
A report released Monday ranked access to public records in the Carolinas as among the worst in the country.
The study by the State Integrity Investigation, which ranks states by their corruption risk, found that both North and South Carolina public record laws fail to provide an appeals process for denied requests or impose penalties on agencies violating public records laws.
North Carolina’s access to public records ranked 43rd and South Carolina ranked 50th in the study, which also evaluated state budget processes, lobbying disclosure and judicial accountability. Both received an “F” in public access to information.
A public record is any information, document, or electronic data – such as a police report or court document – that a government agency is required to maintain by law, and which must be accessible to scrutiny by the public.
Advocates for open government say the culture of secrecy creates obstacles for both citizens and media organizations seeking public records. These disputes are often only settled after expensive, lengthy lawsuits.
Joann Hager, a Lincoln County animal rights activist, has twice used North Carolina’s open record law. On Monday, Hager said she isn’t surprised the state ranks among the worst for access to public records.
“You can ask, but you probably won’t get public records,” Hager said. “That’s pretty much the way it is. They know there is no enforcement.”
Both states also received “F” rankings for responsiveness to records requests in a 2007 study by The National Freedom of Information Coalition and Better Government Association.
North Carolina public record laws fail to provide oversight for requests and lack a way to appeal denied requests in a cost- and time-efficient way, according to the study. The only way to appeal a denied request is through a lawsuit.
N.C. laws fall short
“In North Carolina, the fact that there is no appeal process outside of the courts is a huge flaw,” said Diana Lopez, a senior editor at The Sunshine Review. “This does little to discourage the state and local governments from using a heavy hand when withholding records from the public.”
North Carolina Press Association Executive Director Beth Grace said media organizations have spent about $80,000 so far in a 2008 public records lawsuit against former Gov. Mike Easley concerning deleted emails, according to the study.
But Hugh Stevens, a Raleigh attorney who has worked in open government matters for the past 30 years, said the lack of an appeals system isn’t always bad.
“A lawsuit can be an effective way to get people to turn over records,” said Stevens, who has represented clients including The Charlotte Observer, The Associated Press and WakeMed.
But as Hager found in her fight for information, lawsuits can be expensive.
In 2007, she waited more than a year for records to help her fight a proposed ordinance that would have prohibited more than 10 animals per acre. Two years later, a judge ruled in her favor in the records battle after commissioners acknowledged destroying emails that should have been released. She also fought for names, titles and other details about employees at the Lincoln County Animal Shelter in October 2010.
“They make you spend a pile of money,” said Hager. “Most people aren’t willing to do that.”
Stevens said studies that compare state laws, such as the State Integrity Investigation’s, are often an incomplete view of the situation.
“I’m the last person to say our law is terrific,” he said. “I just don’t think it’s meaningful to try to compare it to other states.”
In Charlotte, local government agencies sometimes diverge wildly in how they respond to public records requests.
In 2010, the Observer requested records involving a half-dozen county officials and the Department of Social Services. The emails were provided free of charge.
In early 2011, the Observer requested emails and other public correspondence related to an incident at Butler High School. CMS said it would cost $2,375 to produce the records. The Observer protested the proposed charges, but the incident ended in an impasse.
S.C. laws are weaker
In the study, South Carolina failed in almost every category of public access to information.
Jay Bender, a professor at the University of South Carolina, attributes South Carolina’s ranking to its culture, not its laws.
“I don’t think we have a bad law,” he said. “We have a political culture that has never been supportive of democracy.”
South Carolina also does not have an oversight organization for requests or provide an alternative to court for appealing denials. But unlike North Carolina, the study said South Carolina’s records request process can also be costly and poor quality.
Bill Rogers, executive director of the South Carolina Press Association, said he was surprised by his state’s low ranking.
“I think we have a better law than many states,” he said. “However, it does need to be improved.”
He said the state’s major problem is enforcement.
“There is no realistic penalty for violations, and violations are more and more common,” he said.
Earlier this month, a judge ruled autopsy reports in South Carolina were not open records. Rogers said The Item newspaper of Sumter, which filed the suit, will appeal that decision.
The State Integrity Investigation is a project of The Center for Public Integrity, Global Integrity and Public Radio International.
Staff writer Fred Clasen-Kelly contributed.