You can take your records dispute to mediation, or you can take it to court. Or both. Voluntary mediation can occur at any time before a lawsuit is filed. To begin the procedure, you must file a request for mediation with the clerk of Superior Court in the county in which a lawsuit would be filed.
After commencing a lawsuit under the Public Records Law, you also must file a request for mediation with the clerk of Superior Court in the county in which the lawsuit is filed.[1] This request must be filed no later than 30 days from the filing of the defendant’s written response to the lawsuit. The clerk of court will provide a list of mediators certified by the N.C. Dispute Resolution Commission. If the parties agree in writing to the selection of a mediator from that list, the clerk appoints that mediator. If the parties do not agree on a mediator, a mediator is appointed by the senior resident Superior Court judge. Nothing in the law prevents the access seeker from seeking injunctive or other relief prior to any scheduled mediation.
If all parties to a public records case agree, they can waive mediation.[2] To do so, the parties must inform “the mediator of the parties’ waiver in writing.”[3] However, in practice, the mandatory mediation requirement will benefit records holders seeking to prevent disclosure of certain records by adding procedural hurdles to the records-seeking process.
Trial and appellate courts are required by statute to gives public records cases expedited or priority review.[4] However, anecdotal evidence suggest that delays are common in standard public records disputes.
If you win a public records lawsuit, no civil penalties or fines or other criminal sanctions are imposed on the individual or agency that originally denied you access to the record. However, the court may award you your attorney’s fees.[5] State law says that when a party successfully compels the disclosure of public records “the court shall allow a party…to recover its reasonable attorneys’ fees….”[6] The court may not assess attorney fees against the government if the court finds that the governmental body or governmental unit acted “in reasonable reliance” on any of the following:
(1) A judgment or order of a court.
(2) The published opinion of an appellate court, an order of the N.C. Business Court or the final order of a trial court.
(3) A written opinion, decision or letter from the attorney general.[7]
Also, a court may not assess attorney fees against a public hospital if the court finds the lawsuit was brought by a competing health care provider to gain a competitive advantage.[8]
If the court finds that an individual public employee or public official has “knowingly or intentionally committed, caused, permitted, suborned, or participated in a violation” of the Public Records Law, the court may order that individual — rather than the agency — to pay all or part of the attorney fees.[9] However, the public employee or official cannot be ordered to pay your attorney’s fees if the public employee or official received and followed the advice of an attorney.[10]
The rules regarding the payment of attorney fees work both ways. If the court finds your access suit was filed in bad faith or was frivolous, the court may make you pay the government attorney’s fees.[11]
You should be aware that an access case can take years to litigate. By the time you obtain access to a document, it may no longer be newsworthy. In most cases, there are no better access tools than well-developed sources and enough knowledge of access law to enable you to present a convincing argument to a resistant record keeper. Assistance is available from the North Carolina Press Association Hotline (919-833-3833), the North Carolina Association of Broadcasters Line (919-821-7300), and the North Carolina Open Government Coalition (336-278-5506). Also, you can urge the government agency to seek an interpretation of the law from the state attorney general.
[1] N.C. Gen. Stat. § 7A-38.3E(b).
[2] N.C. Gen. Stat. § 7A-38.3E(e).
[3] Id.
[4] N.C. Gen. Stat. § 132-9(a).
[5] N.C. Gen. Stat. § 132-9(c); see also, North Carolina Open Government Guide, 21 (2019).
[6] N.C. Gen. Stat. § 132-9(c).
[7] Id.
[8] N.C. Gen. Stat. § 132-9(e).
[9] N.C. Gen. Stat. § 132-9(c).
[10] Id.
[11] N.C. Gen. Stat. § 132-9(d).
