McCrory claims immunity from public records claim

Posted November 1, 2016

— A lawyer for Gov. Pat McCrory told the state Court of Appeals Tuesday morning that the state should be immune from any judgment finding the current administration either cannot or does not comply with open records requests in a timely manner, as alleged by a coalition of media groups.

The group includes Capitol Broadcasting Co., the parent company of WRAL News, and other media companies, as well as the Southern Environmental Law Center and the North Carolina Justice Center. All make regular use of public records in their work.

In addition to suing for access to particular public records, the coalition has asked the courts to order state officials to adjust their practices so that records more swiftly become available, in keeping with the law's admonition that records should be brought forth "as soon as practicable."

But David Wright III, a lawyer representing the administration in the matter, said the state should have "sovereign immunity" from the claims, invoking a legal tradition that citizens can't sue the state unless they have been expressly allowed to do so by law. In this case, Wright said, the media coalition can sue for specific records but not to change the administration's pattern and practice. The legislature, he said, provided for no such legal remedy.

"They're asking for additional remedies from this court, which is directly contradictory to what this court has counseled in the past," Wright said.

This case has not yet gone to a full trial in Superior Court. Rather, the administration has appealed a lower court's order denying summary judgment. That appeal has effectively halted the lower court trial and the coalition's efforts to gather evidence by deposing witnesses and seeking documentation about the McCrory administration's records practices.

Hugh Stevens, a lawyer for the coalition, told the three-judge panel there has been a "systematic failure" to follow the open records law within the administration for some undetermined reason.

"Because our attempts at discovery have been completely thwarted, we don't really know why these defendants can't seem to comply, or won't comply, with public records requests," Stevens said, arguing the lower court case should be allowed to proceed.

He said that McCrory administration lawyers were trying to use standards set forth for one-off cases in which a government entity refused to comply with a records request for a particular reason. In this case, Stevens argued, the administration has repeatedly not followed the law, and the court should have the latitude to force it to comply without the necessity of repeated lawsuits.

"We don't care how the defendants comply with the law," Stevens said. "We just ask that they do it."


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