Hackney blocks bill on legal fee recovery

News organizations and members of the public who have sued to gain access to public records will still need a judge's approval to be reimbursed for legal costs.

House Speaker Joe Hackney said Wednesday that he does not support legislation that would make "reasonable" legal fees automatically payable to those who win public records suits against state and local governments. He told a House committee chairman not to run the legislation, which passed the Senate by a unanimous vote on Monday.

"All the speaker told me was we don't have enough time," said Rep. Deborah Ross, a Raleigh Democrat and chairwoman of the House judiciary committee to which the legislation had been assigned. The legislature is trying to wrap up its session this week.

The N.C. Press Association and N.C. Association of Broadcasters had sought a change in the legal fee standard, which has been law for three years. They contended that judges are still letting agencies that denied public records escape paying the legal bill.

"Every state in the country either has automatic recovery of legal fees or criminal penalties for denying public records," said John Bussian, an attorney and lobbyist for the N.C. Press Association, which includes The News & Observer as a member. "It's time to give some enforcement teeth to the public's right to know."

Public records lawsuits can cost tens of thousands of dollars, making it difficult for average citizens to take on government.

One case that prompted legislators to revisit the legal fee issue took place in Hackney's district: Gretchen Lothrop sued the Chatham County Board of Elections over illegal meetings and denials of draft minutes from board meetings.

A judge sided with her on the law, but did not award her the $35,000 she racked up in legal fees. The judge gave her 10 percent of that. She held fundraisers to help pay the rest of the bill, but the decision left her cynical about how serious local governments are about conducting the public's business openly.

"I'm really disappointed," Lothrop said Wednesday. "It makes it look as though the legislature wants to perpetuate an environment where there is no real accountability."

'A Catch-22 situation'

Advocates for local governments and public hospitals fought the legislation. They said that it unfairly provides those who were wrongly denied public records automatic recovery of legal fees, while not providing that benefit to governments that proved the records were not public.

They also said that public officials sometimes make tough calls in releasing records and shouldn't be penalized for honest mistakes. State law, for example, includes a misdemeanor criminal charge for those who "knowingly and willfully" release nonpublic personnel records.

"You put them in a Catch-22 situation," said Andrew Romanet, general counsel for the N.C. League of Municipalities.

The legislation, sponsored by Sen. David Hoyle, a Gastonia Democrat, would create a unit within the state Attorney General's Office to help prevent such situations.

The unit would mediate disputes and educate public officials and citizens about their rights under the public records and open meetings laws.

Hackney, an Orange County Democrat, said he liked that part of the legislation, but not enough to give it an airing in what appears to be the waning days of the session.

Bussian pleaded with Hackney on Wednesday outside the speaker's office to give the legislation a chance to be heard, but Hackney told him it was too late.

"I'm just leery of doing things at the last minute," Hackney said.