CHAPEL HILL - In 1935 the General Assembly adopted a public records law guaranteeing citizens the right to scrutinize the documents of their state and local governments. The legislators certainly did not intend that a citizen would have to pay $35,000 to exercise that right. Too often today, that's the price tag for access to government records in North Carolina. It can cost that much to sue a government body or official who refuses to release documents that by law are supposed to be available to the public.

The General Assembly should fix this problem by voting for the Open Government Act, which would require the government to pay the attorney fees for anyone who successfully sues the government for access to documents.

The problem is perfectly illustrated by a recent case in which a Chatham County artist spent $35,000 to sue the county Board of Elections for access to its records and meetings. The plaintiff had heard that the board was considering buying new ballot-counting machines, so she asked for minutes of meetings at which the purchase was discussed. She was told there were not any minutes, which would have been a violation of state law -- if it hadn't been a lie.

When the artist and others went to election board meetings to ask questions, they received no answers. "A lawsuit was our only option," she told a reporter.

A judge ruled that the election board violated the Open Meetings Law three times and the Public Records Law four times. However, the judge made the election board pay only 10 percent of the plaintiff's attorney fees because, the judge said, it would be "unjust" to make Chatham County citizens pay more.

The real injustice, however, was in the election board's denial of citizen access to its decision-making process and in its expenditure of tax dollars to pay its own attorney to defend clearly illegal behavior. It also was unjust to leave it to one citizen to bear 90 percent of the cost of uncovering information of value to all Chatham County citizens.

In North Carolina, as elsewhere, the media often have borne the cost of access litigation on behalf of their readers and viewers. However, only a handful of media outlets usually are willing -- or able -- to sue for access to public records. And with the media now in financial turmoil, the number of outlets that can afford to sue for access undoubtedly will shrink.

In 2005 the General Assembly attempted to fix the attorney-fee problem when it amended the state Public Records Law to say that the courts shall allow access requesters who win in court to recover reasonable attorney fees. That amendment simply has not worked, however. It included two exceptions to the rule mandating the recovery of attorney fees, exceptions so broad that they swallowed the rule. The law says a judge need not award attorney fees if the judge finds the government acted with "substantial justification" in denying access, or if the judge finds circumstances that make the awarding of attorney fees "unjust."

The proposed change to state law -- automatic fee recovery without broad exceptions -- is nothing radical. A dozen states, including Florida and West Virginia, already include such a provision in their public records laws.

And this is not get-rich-quick legislation. Plaintiffs would merely break even financially, and they would not be compensated for their time or for the stress inevitably involved in litigation. Neither would access requesters be compensated if they hire attorneys to negotiate the release of government documents but never file a lawsuit, or if they file a suit that is settled out of court, two common outcomes in access disputes. And, of course, access requesters would be compensated only if they win.

Furthermore, the legislation, introduced by Sen. David W. Hoyle, a Gastonia Democrat, probably would reduce the number of access lawsuits, because it would create and potentially fund an Open Government Unit in the state Department of Justice. The unit would mediate access disputes between the public and government, issue advisory opinions and educate citizens and officials about access issues. Most citizens and media outlets would pursue their access disputes through this new mediation process because it would be speedier and less expensive than suing.

The General Assembly needs to fix the attorney-fee problem by adopting the Open Government Act. Only when citizens have the affordable right to observe the workings of their government can they complain about -- or applaud -- what they see. And while complaining citizens are a headache for government officials, they are the heart of a healthy democracy.

(Cathy Packer, Ph.D., teaches media law in the UNC-Chapel Hill School of Journalism and Mass Communication and works in the school's Center for Media Law and Policy.)

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