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Open Government Unit & Attorney Fees (HB 1134)

This bill is now pending in the Senate. If has been assigned first to the Judiciary 1 Committee and if reported favorably, will be sent on to the Senate Finance Committee. The Judiciary 1 Committee is chaired by Martin L. Nesbitt Jr. The panel has four vice-chairmen: R. C. Soles Jr., Daniel G. Clodfelter, Peter S. Brunstetter and Josh Stein.

Other members of the committee are: Charles W. Albertson, Philip E. Berger, Dan Blue, Eleanor Kinnaird, Floyd B. McKissick Jr., David Rouzer, Andrew C. Brock, Harry Brown, Debbie A. Clary, Malcolm Graham, David W. Hoyle, Clark Jenkins, Tony Rand, Richard Stevens and Jerry W. Tillman.

The committee's normal meeting time is 10 a.m. on Tuesdays and Thursdays.

The Open Government bill passed on third reading in the House on July 13. The vote was 107-5 with 2 members not voting and six excused absences (Get the roll call vote report here). You can read a statement on the vote from the Attorney General's office by clicking here.

The attempt to amend this bill on the House floor failed prior to the vote on second reading July 9. The amendment, being pushed by representatives of local government groups, would have allowed sued government officials to collect attorney fees from the plantifffs if they lost. This amendment would be a step backward for N.C. Open Government law: it would discourage citizens and the press from suing to get the government to release public records.

The full title of this legislation is "An Act To Create The Open Government Unit Of The Department Of Justice, To Establish A Fee For Services Of Moderation And Mediation By The Open Government Unit, And To Provide That The Successful Plaintiff In A Public Records Dispute Is Entitled To Reasonable Attorneys' Fees."

The title provides a good summary of this legislation. It does set up parameters for judges to deny automatic recovery of attorney fees when the defendant has taken certain steps before denying the public access.

The primary sponsors of this legislation are: Rep. Deborah Ross, D-Raleigh; Rep. William Wainwright, D-Havelock; Rep. W.A. Wilkins, D-Roxboro; and Rep. Margaret Dickson, D-Fayetteville. There are four co-sponsors.

We urge each member to promote passage of this bill WITH NO AMENDMENTS. Newspapers and the NCPA strongly support this bill AS IT STANDS. This bill – IF LEFT UNCHANGED -- gives the people of North Carolina automatic recovery of attorney fees in public records cases.

Electronic public notices for Clayton and possibly others (HB 710)

HB 710 is a local bill brought forth on behalf of the town of Clayton by Rep. Leo Daughtry. Opponents of leaving public notices in the public eye – led by House Republican Leader Skip Stam, who has now lost THREE tries in three weeks to take public notices away from the public – tried again in the House Judiciary I Committee to load up HB710 with 11 more communities after we twice defeated a statewide bill (HB193) with your help and lobbying support. Thanks to exceptional last-minute work by John Bussian, we defeated this by a very narrow vote of 6-5. Stam, however, after losing that vote, asked for the bill to move forward with Clayton only and that was given a favorable vote 7-4 and will move to a floor vote.

NOTE: The full House approved the bill on May 12. It was OK'd as reported out of committee, with no amendments, on second and third readings. It will next head for the Senate for its consideration.

NCPA VIEW: We strongly oppose this measure as taking public notices out of even one newspaper where the public will notice means that members of that community (or communities) are denied information that may be vital to them.

Required recording of closed sessions (HB 1263)

This bill amends the current open meetings law by requiring the audio or video recording of closed sessions. The requirement would apply only to municipalities or counties with population of 50,000 or more. The tapes would be available for public inspection once the reason for the closed session no longer applies.

The bill is sponsored by Rep. Nick Mackey, D-Charlotte, and Rep. Kelly Alexander, D-Charlotte. It has six co-sponsors.

NCPA VIEW: We strongly support efforts to make government more transparent as this bill would.

Internet Defamation (HB 1381)

Unlike SB 46, this piece of legislation does not make libel on the Internet a criminal offense. If does provide a system for claiming financial damages from the person doing the alleged defamation. It also includes a requirement dealing with handing over information about the person doing the communication: "The person who administers or provides facilities for the electronic medium involved in the alleged defamation shall disclose any information regarding the identity of the communicator of the alleged defamation upon a finding by the court that the plaintiff has enough evidence to survive a summary judgment motion to dismiss the plaintiff's complaint."

The bill was sponsored by Rep. Earl Jones, D-Greensboro. It has no co-sponsors at this time.

NCPA VIEW: We oppose this legislation as well as SB 46.

Changing qualifications for public notices in Huntersville (HB 772)

This bill redefines the requirements for publishing public notices in Huntersville by removing the requirement for paid circulation, redefining the meaning of "newspaper of general circulation." It is a local bill sponsored by Rep. Thom Tillis, R-Cornellius.

On April 8, the House Local Government 1 Committee sent this bill to a sub-committee for a recommendation. We continue to watch this piece of legislation.

NCPA VIEW: NCPA opposes. Although this is a local bill, it carries the potential of being expanded into a statewide bill. The NCPA is working with lawmakers to discuss ways to recast the law in the 2010 session and stands strongly in opposition to this bill.

Recovery of attorney expenses in open record cases (HB 724)

Under this legislation, an amendment to Section 1. G.S. 132‑9(c), the recovery of reasonable plantiff attorney fees in a successful lawsuit would be automatic.

The bill's main sponsors are Rep. George Cleveland, R-Onslow, and Rep. Curtis Blackwood, R-Matthews. There are 11 co-sponsors, all Republicans. It has been referred to the Committee on State Government/State Personnel.

NCPA VIEW: NCPA supports any effort to help those who seek to keep government open.

Failing to produce public records a misdemeanor (HB 644)

This bill adds a few important words to the current public records law of North Carolina. The added words are "A violation of this subsection is a Class 2 misdemeanor." The specific subsection is 132‑6, Inspection and examination of records.

The bill's primary sponsors are Rep. George Cleveland, R-Onslow, and Rep. Justin Burr, R-Albemarle. It has 11 co-sponsors, all Republicans. It has been assigned to the Committee on Judiciary 1.

NCPA VIEW: NCPA supports this legislation.

Public Notices/Advertisements (HB 193)

This bill, sponsored by Rep. Paul Stam, R-Wake County, and Rep. Julia Howard, R-Mocksville, would allow all cities and counties to pass ordinances to put all of their public notices on their own Web sites instead of requiring them to be published in the local newspaper of record.

The House Local Government II Committee gave the legislation a favorable report on March 4. House Judiciary 1 committee met on April 21 for a brief hearing. A substitute version of the bill was withdrawn. No action was taken on the measure by the committee, chaired by Rep. Deborah Ross, D-Wake. Bill sponsor Rep. Stam is a vice chairman of the Judiciary committee. For a complete list of other committee members, click here.

UPDATE (5-7-09): A second substitute version of this bill was withdrawn by sponsor Rep. Stam. The bill was up for consideration again by the Judiciary 1 Committee on May 7. This version of the bill was designed to hit only larger counties.

Focus of debate may now shift to HB 710 that had only targeted the city of Clayton. There may be a move to add other individual counties or municipalities to this bill.

NOTE: Click on the "NCPA statements" button below to access a White Paper prepared by NCPA lobbyists for legislators and the prepared testimony of NCPA President Rick Thames for the April 21 committee hearing.

NCPA strongly recommends publishers who are represented by members of this committee to call them today and point out the flaws and problems of taking public notices out of the public's eye. Be sure to read the column by Tonda Rush first. Access it by clicking on the Editorial button below.

The steady drumbeat of “local bills” of the last five years, seeking to allow local government the option to post legal ads online instead of advertising in member newspapers, has increased. So far, only five municipalities in Wake County have authority to enact ordinances to post notices electronically.

NCPA VIEW: The NCPA has opposed these efforts and will continue to oppose expansion of the concept through future legislation. The bottom line is that there are no government Web sites – or any others – that can match the reach of NCPA member electronic and print legal advertising.

This bill hurts those with the most to lose by stripping them of easy access to notices that will make an impact on how they live their lives. The state’s own studies show a widespread lack of access to the internet, which leaves the poorest North Carolinians out in the cold when it comes to their right to know what their government is doing. And older residents who do not use computers are without any access at all to public notices under this bill.

Public notices need to be where people will see them. Allowing the government to police its own openness is simply a bad idea and has never, in history, worked. The very laws that require notices be placed in papers were passed to eliminate secrets in government, insider deals and nepotism.

HELPFUL RESOURCE: Read the letter Lockwood Phillips, publisher of Carteret County News-Times, wrote to his local representative. It is an excellent example of how we can best discuss this issue with legislators and the public. Click on the Editorials button below. (Tip: If you have trouble opening the window for Editorials, make sure your browser permits pop up windows from this site.)

Transparency in Recommendations (SB 335) and (HB 555)

This bill, sponsored by Sen. Philip Berger, R-Eden, would make public record any communication by a public official either recommending or discouraging the employment or appointment of person for a state government position.

The bill has eight co-sponsors in the Senate. The primary sponsor of the House version is Rep. Thom Tillis, R-Cornelius, with seven co-sponsors. All of the co-sponsors in both chambers are Republicans.

The House bill has been assigned to the Committee on State Government/State Personnel. The Senate version is assigned to Committee on Judiciary 1.

Right to Publicity Act (SB 366) and (HB 327)

This bill was designed to prevent the use of an individual's personality for commercial purposes without that person's consent. It involves products, advertising, selling and even fund-raising. It also includes both living and dead people.

It defines "personality" to include the following attributes: name, voice, signature, photograph, image, portrait, likeness and distinctive appearance.

The bill outlines ways the "right to publicity" may be transferred through contracts, licensing, etc. The provisions of the bill apply to use in North Carolina, but the person involved may be from anywhere.

The legislation does make exceptions for non-commercial purposes, such as news.

A registration process would be established with the Secretary of State's office. Penalties include at least $1,000, the possibility of punitive damages and attorney fees for the prevailing party.

In the House, the bill is assigned to Committee on the Judiciary 1.

Changes in the Lottery Act (HB 205)

The original bill as filed contained provisisions concerning secrecy of certain information. Changes were made by the sponsor to lessen open records concerns.

Notification of emergency/special meetings by e-mail, Web site (HB 81)

This bill, filed by Rep. George Cleveland, R-Onslow, would add e-mails as a way of contacting the news media and others of emergency or special meetings of a public body. The bill also contains provisions that require public bodies with their own Web sites to post notices of these meetings there.

The bill passed on third reading (114-1) in the House on May 4. It was sent to the Senate and assigned to the Committee on the Judiciary 1.

NCPA view: We support this bill as introduced.

Blog Libel (SB 46e)

Note: Blog on the troubles with this legislation. Click on News reports button below. 2-9-08

A measure filed Feb. 3 by Sen. Steve Goss would specify that blogs can be libelous. (Go to bill text below) Goss, D-Watauga, said he wrote the bill over concern that "fast-moving Internet technology" may be outstripping existing libel laws. He wants the law to specifically say that blogs and other online media can be considered libelous. "We need to make sure that we're keeping up with technology," he said. "I believe these blogs are getting out of control."

Legal experts say blogs are already covered under common law, though they may not have as many protections in state statutes in North Carolina as newspapers and magazines. Mike Tadych, a First Amendment lawyer with the N.C. Press Association, said that there have been a number of cases of people suing for libel over things published online. But he was not aware of any cases where bloggers used the state's libel laws to protect themselves. "We would make that argument, but I don't know that it's been tested in North Carolina," he said.

One state libel statute forces the potential plaintiff to first notify the publication. If it issues a "full and fair correction" within 10 days, any fine is limited to one penny. A second statute puts a one-year statute of limitations on libel and slander suits.

The title of the bill currently says that Internet libel would also be considered a misdemeanor criminal offense, something that's not been true in the United States since colonial times. Goss said that was a mistake and that he intended the bill to focus on civil cases and not criminal law.(THE NEWS & OBSERVER, 2/03/09).

Street Sales

NCPA-led legislation in the 2007 and 2008 sessions of the General Assembly restored the constitutional right of NCPA members to sell newspapers along public thoroughfares. Several local governments had restricted newspaper street sales, ultimately requiring state legislation to restore distribution rights. Expect legislation that would be aimed at undoing the NCPA's hard won 2008 victory.

NCPA VIEW: The right to sell newspapers on public streets and sidewalks is constitutionally protected. And nothing in the 2008 law, principally sponsored by new Lt. Gov. Walter Dalton, alters the current schemes for newsrack distribution in use in places like Charlotte and Raleigh.

Misconduct in government

The public's right to see certain records of misconduct in government employee personnel files needs to be made part of the Public Records Law. Currently, a dozen state statutes uniformly seal off from public view all records of hiring, firing, and performance of public servants. Opening records of misconduct would begin to bring North Carolina in line with the majority of other states, many of which allow virtually unfettered access to public personnel file material.

NCPA VIEW: Personnel files of those employed by the people and paid with tax dollars should be open to public inspection.