New public records law, the good and the bad

As part of a bill making wide-ranging changes to ethics laws in North Carolina, the state legislature updated portions of the law pertaining to public records requests. (The bill passed unanimously in the house and had one "no" vote in the senate, by Senator Phil Berger).

[Update: As the News & Record's Mark Binker notes (comments), the governor hasn't signed the bill into law yet, although he says she is expected to.]

The good and the bad:

Bad: Compulsory mediation prior to bringing a suit for public records.
Mediation is expensive and can take hours. My party's share of a half-day's mediation on a records request I engaged in was nearly $500. A generous benefactor paid it, so it wasn't too painful, but it produced little result and we ended up having to go to court anyway. While the new law allows both parties to waive the mediation, government employees who are not spending their own money could use insistence on mediation as a cudgel to make bringing records requests into the legal system costly for citizens.

Good: Expanded information about public employee histories.
The previous law had been interpreted to allow only information about an employee's current position as public record. The new law now allows public access to an employee's salary history and history of promotions, demotions and transfers and a "general description," of the reason for each.

Bad. Personnel records law still open to abuse.
When the City of Greensboro decides it does not want an employee's name to publicly appear in records, it takes the position that any commentary, "good or bad," about an employee may not be publicly released. Thus a public comment submitted to the city about the search for a police chief that says, "Bring back xxxxxxxx!" gets redacted with the excuse that it is either a positive comment about an ex-employee or a sarcastic comment about an ex-employee and the city may not release information about an employee or ex-employee "good or bad."

Of course, when the city honors employees in its newsletters and press releases. It is doing the very thing the Attorney's office says is prohibited -- publicly disseminating an opinion of the employee. The City selectively applies a twisted interpretation of the law at its convenience. The state should have specifically addressed circumstances under which an employee's name may be withheld from public information.

Good. Attorney's fees paid by public body if it loses records request lawsuit.
If a person requesting records has to go to court and wins, his attorney's fees must be paid by the governmental body he had to sue -- with some limited exceptions.

Very good. An individual public employee may be responsible for paying attorney's fees.
If the court finds that an individual public employee intentionally subverted public records law, he or she may be held personally liable for attorney's fees accrued from a successful records suit. The threat of personal liability should assure that public employees are not capricious in their refusal to release records.

Could go either way. Filers of frivolous suits may be responsible for public body's attorney's fees.
A person who files a suit for records that is determined to be in bad faith or frivolous has to pay the attorney's fees for the public body. "Frivolous" is open to some interpretation, so I suppose we will just have to wait and hope that this does not get overused by the courts.