Sunshine update: Mediation questions

In pursuit of public records:

The Sunshine Center has received several inquiries about how citizens may take advantage of the procedure for mediating public records disputes that was enacted by the General Assembly in July. The legislation, which was intended to provide public records requesters and custodians with a process for resolving public records disputes short of litigation, became effective Oct. 1, but as of this writing it is not completely clear how the process will work and, more importantly, whether it will be effective.

For those coming in during the middle of the movie, the mediation issue is huge. In the past, only a handful of (large) media entities could afford to pursue public records requests if the targeted government agency proved intransigent on the release of such. And even those relatively well-financed groups were forced to choose their battles wisely, as legal fees have a habit of piling up pretty quickly.

A move out of the courts and into a (much less expensive) mediation process is key in opening the window into government. But this is a new species of animal, at least in our state, and it needs some grooming:

The General Assembly presumably intended to make the new process simple by engrafting it onto the well-established procedures for court-ordered mediation of civil lawsuits, but someone apparently neglected to check with the Administrative Office of the Courts, which is responsible for implementing the new law. In ordinary civil suits mediation occurs within the structure and context of an existing lawsuit, but the new process is designed as a precursor or alternative to litigation, so it requires clerks of court to open and maintain a new file. Around the time the new law took effect the AOC hastily created new forms and distributed instructions to the clerks, most of whom have not had time to familiarize themselves with the new directives. The AOC has told the clerks to treat requests for mediation of public records disputes as a type of “special proceeding,” charge a filing fee of $6.00, after which the requester and the custodian of the disputed records are supposed to choose a mediator via the same process as the litigants in civil cases. Among other things this means that requesters of public records who are not represented by attorneys will find themselves negotiating about the choice of a mediator with public agencies who are.

Perhaps the thorniest issue presented by the new law, however, is whether custodians of public records and/or the courts will interpret the new law as requiring requesters to participate in mediation as a prerequisite to pursuing their rights via a lawsuit grounded in the Public Records Law. If so, the new law will simply lengthen and increase the cost of a legal pipeline that is already too long and too costly.

It's apparent this statute needs to be refined, but I have a few words for our newly-minted Republican General Assembly: If you try to whittle this thing down to an even less effective open government vehicle, you can kiss your Tea Party base goodbye. If they don't plaster it all over their websites, I'll do it myself.

Comments

Ticking Clock

In my experience a local municipality can just stonewall until a requester basically gives up. I've gotten to the point where I have to either file a lawsuit or walk away.

My hope was this new modification would give me leverage in pursuing documents that are clearly covered by the open records laws but that Chapel Hill continues not to divulge (specifically, documents covering a private/public development deal that has gone south, so to speak).

Our local Council just adopted a new ethics ordinance that sharpens their obligation to provide open records so, hopefully, folks won't find themselves having to avail themselves of the new provisions. That said, if they do reach an impasse, the Town might take them a bit more seriously now that the costs of litigation appear to have been reduced.

CitizenWill
there comes a time when one must take a position that is neither safe, nor politic, nor popular, but he must do it because Conscience tells him it is right. MLK,Jr. to SCLC Leadership Class

Mediators should be provided

Something about the article above has been bothering me:

...the requester and the custodian of the disputed records are supposed to choose a mediator via the same process as the litigants in civil cases. Among other things this means that requesters of public records who are not represented by attorneys will find themselves negotiating about the choice of a mediator with public agencies who are.

Not sure how it's done in civil cases, but a list of mediators, selected by a special Commission, is supposed to be provided for the two sides to choose from:

The Administrative Office of the Courts shall prescribe a request for mediation form. The party filing the request for mediation shall mail a copy of the request by certified mail, return receipt requested, to each party to the dispute. The clerk shall provide each party with a list of mediators certified by the Dispute Resolution Commission. If the parties agree in writing to the selection of a mediator from that list, the clerk shall appoint that mediator selected by the parties.

And if they can't agree on a mediator (or if the custodian delays too long?), the requestor doesn't have to engage in a prolonged fight with the custodian's legal counsel, he/she can get help from a judge:

If the parties do not agree on the selection of a mediator, the party filing the request for mediation shall bring the matter to the attention of the clerk, and a mediator shall be appointed by the senior resident superior court judge. The clerk shall notify the mediator and the parties of the appointment of the mediator.

It looks to me like the law (as written) is fine. If the Dispute Resolution Commission has yet to be empaneled; or they have but haven't yet compiled a list of qualified mediators; or that's ready but the clerks aren't; we're talking administrative problems that need to be fixed so our system can be in compliance with statute.