Pssst...your government is keeping secrets

In North Carolina, government records by law are "the property of the people."

Except when they're not.

North Carolina has a Public Records Law that ostensibly grants public access to information gathered by state and local agencies. But secrecy rules strewn throughout other North Carolina laws allow state and local officials to keep numerous records out of the public's hands.

Each secrecy law prevents citizens from learning, copying or spreading information the government gathers with tax money for public purposes.

Many of the exclusions have wide support -- keeping personal medical records private, for example, as well as library-user records, trade secrets, taxpayer information and Social Security numbers.

Some state secrets are obscure: How many pigs each farmer owns, for example, is confidential. So is the amount of commercial fertilizer merchants sell.

Others have sparked controversy, such as a law that lets state officials withhold details of corporate tax subsidies for five weeks after the deals are announced.

Some of the tightest lids on information serve powerful interests: hospitals, doctors, lawyers, government workers.

A survey a decade ago by lawyers in the Attorney General's Office turned up 316 state laws, many overlapping, that deny the public access to government information. Since then, legislators have added more, typically several a year.

Last year, the General Assembly tweaked a law to clarify how quickly the government has to reveal information about the subsidies. At the same time, lawmakers denied the public access to five other kinds of records, including the findings of a background investigation into the company that will run the state lottery.

State Sen. Dan Clodfelter, a Charlotte Democrat who sponsored several revisions, said the state lacks "a good clear statute" on governmental openness.

"It's pretty much a hodgepodge," Clodfelter said. "It's all over the statute books, and some of it is in case law. We really need to sit down and rewrite the thing from top to bottom."

Sunshine advocates agree the law needs streamlining -- and they say it's time to shift it toward more transparency.

"I see a never-ending wave of legislation aimed at rolling back the public's right to know," said Raleigh attorney John Bussian, the lobbyist for the N.C. Press Association. "There are darn few lawmakers willing to sponsor legislation to improve public access."

Fighting for the facts

Openness promotes good government and discourages waste and corruption, its advocates say.

"Government operates best in the sunshine," said Attorney General Roy Cooper, a Democrat. "It's easier to make a decision in the back room when nobody's looking. The process is more difficult when you shine the light. But the results are mostly better."

In countless other ways, openness empowers citizens.

Parents concerned about their children's school reassignments rely on public records.

Taxpayers tracking state spending abuses depend on disclosures of government actions.

Residents interested in their local government can attend meetings and demand records to find out what's going on.

Gail Julian did. The Moore County retiree and four of her friends waged a two-year battle to open law-enforcement records and the council meetings of their town, the Village of Whispering Pines, population 2,100.

In the end, a judge ruled last year that the town had broken the law at least seven times.

"Without the sunshine laws, we've got nothing," said Julian, 73, a former corporate personnel manager. "The government ceases to be a representative democracy and becomes a ruler."

But Julian and her friends paid a hefty price: a legal bill of about $30,000. A judge refused to make the town pay their legal costs.

"If there are no consequences, the laws are worthless," Julian said. "Why have the laws if people can break them and just go home?"

Quiet lawmaking

State lawmakers also have dealt themselves special rights to keep secret records. Their draft bills are confidential, unlike the draft reports of most government agencies. Their information requests to legislative staffers are secret.

Documents that legislative staffers prepare for the lawmakers are not public records unless they're introduced later as proposed legislation.

And lawmakers exclude the public from meetings of their conference committees, which work out compromises between the House and the Senate, and even the Legislative Ethics Committee, which probes misconduct.

Unlike the public, however, lawmakers can get a wide range of information and data in state government except personal medical records and taxpayer information. They have access to much information about state government employees that the general public cannot see, including the personnel files of teachers and other government workers.

Employee protections

Under the law of North Carolina, the public is not entitled to see job applications for government positions at any level.

The criminal background checks and disciplinary records of police officers and public school teachers are confidential, too.

Also hidden from the public are the pay history, performance reviews and disciplinary records of state or local government workers, including their demotions, suspensions and firings. In unusual circumstances, agency heads can disclose these matters to promote the agency's integrity, though it happens rarely.

In Ohio and Florida, by contrast, the public has open access to job applications, performance evaluations and firing memos of government employees.

Government workers say their need for privacy and protection against political retribution outweigh the interest of the public in getting such records.

"You can't have eight million individuals making judgment calls about particular incidents and agencies," said Dana Cope, executive director of the State Employees Association of North Carolina. "The public should put their trust and faith in their elected representatives to handle it.

"We don't want to protect bad employees. We want to protect good employees from bad things."

Sunshine advocates say taxpaying Tar Heels are entitled to know more about public workers.

"We accord a scandalous degree of privacy to government employees," said Raleigh media lawyer Hugh Stevens, who often represents The News & Observer. "The various personnel statutes make it almost impossible to find out anything meaningful about the qualifications, competence, performance, compensation or discipline of public employees, all of whom work for and are paid by us. It's way out of balance."

At public hospitals

Some of the biggest disputes over public access concern hospitals run or supported by government bodies.

Among the hospital secrets:

* Financial settlements of medical malpractice lawsuits against public hospitals. Every other state or local government entity must disclose lawsuit settlements.

* Hospital inspection records.

* Hospital and other medical "peer review" assessments of doctors' job performance.

* Nurses' performance records.

* Bonuses, insurance or other nonsalary benefits paid to hospital executives.

The state's several dozen public hospitals say they need to conceal their lawsuit payments and managed-care contract rates to compete evenly with private hospitals, which aren't subject to open-government policies.

"Public hospitals have competitors; cities and counties don't," said Bill Pully, president of the N.C. Hospital Association. "Public hospitals are valuable institutions in their communities, and you don't want to cause them any inadvertent harm."

Hurdles to enforcement

Enforcing the state's sunshine laws is expensive, often takes years, and falls on the shoulders of private citizens.

In some cases, government workers face stiff penalties for releasing confidential information, such as corporate trade secrets.

If a government worker discloses how much lumber a company produces, that's a crime and the employee could be fined. It's also a crime to reveal trade secrets of cosmetic companies or the formulas of commercial animal feed, pet food or antifreeze.

But government record-keepers who withhold public information illegally face no fines, no criminal penalties and rarely any public admonition.

And unlike some other states, North Carolina has no agency, commission, judge or lawyer in charge of enforcing the Public Records Law.

It's up to citizens or news organizations to sue violators in state civil court. If the media organization or citizen wins, the government occasionally has to pay the legal fees, depending on the judge's view of how blatant the violation was.

But the public almost always pays the legal bills of government agencies that violate the law.

"We have local municipalities, county commissioners and public universities trampling all over our state's sunshine laws," said Whispering Pines business owner Joe Stout, who led the rebellious citizens group there. "What entity in this state represents the private person? Nothing. Nobody.

"Not many private citizens out there will do what we did. We succeeded -- but not in getting any real change."

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