AG’s office argues state agency cannot be sued for violating public records law

Updated: Jul. 25, 2017 at 6:13 PM EDT
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RALEIGH, NC (WBTV) - The North Carolina Attorney General's Office has renewed its request that a judge dismiss a public records lawsuit citing, in part, an argument that a state agency cannot be sued for violating the state's public records law.

A lawyer in Attorney General Josh Stein's office, representing the North Carolina Department of Revenue, has made the argument in multiple filings on the department's behalf.

WBTV investigative reporter Nick Ochsner filed a lawsuit against the Department of Revenue in December 2016 after the department refused to fulfill a public records request related, in part, to Ochsner's tax records. The request was submitted in June 2016.

According to the complaint, the request sought communication records from department employees, certain collection notices sent by the department and a copy of Ochsner's tax file.

Documents attached to the original legal complaint show the department's general counsel refused to conduct a search for records responsive to the public records request.

Document: Read the complaint in Ochsner v. NCDOR

The Attorney General's office first claimed the department could not be sued for violating the public records law in its answer to the lawsuit filed in late January.

"The action is barred, in whole or in part, by sovereign immunity and should therefore be dismissed pursuant to Rule 12(b)(1) and (b)(2) of the North Carolina Rules of Civil Procedure," the Attorney General's office said on the Department of Revenue's behalf in its January filing.

Court records show the public records lawsuit proceeded without a judge ruling on the motion to dismiss.

But the Attorney General's office renewed its request that a judge throw the public records lawsuit out in a filing made earlier this month, arguing, in part, that the public records lawsuit is barred by sovereign immunity.

Document: Read the answer filed by the NC Department of Revenue

"Consequently, N.C. Gen. State. 1-254 does not give the Court jurisdiction - subject matter or personal - to order the declaratory relief that Mr. Ochsner seeks, which is not available under the Public Records Act," the Attorney General's office argued in a brief supporting its renewed motion to dismiss.

Attorney Jonathan Jones, who specializes in public records law as Executive Director of the North Carolina Sunshine Center, said it was unusual for a government agency to raise a sovereign immunity defense in North Carolina in a lawsuit about the production of public records.

"I'm not a civil procedure expert but the plain language of the records law seems to authorize claims against the state," Jones said.

Attorneys representing then-Governor Pat McCrory attempted to raise a sovereign immunity defense in a lawsuit brought by a coalition of media outlets and non-profits alleging his administration had a pattern and practice of violating the public records law.

But in that case, attorneys for McCrory argued the sovereign immunity doctrine applied because the coalition sought a broad ruling from the court on the administration's handling of public records as opposed to a lawsuit seeking production of a specific set of documents, WRAL reported.

Jones, the public records law expert, said the McCrory case was the first time he had ever seen a government raise sovereign immunity as a defense to a public records lawsuit.

"Sovereign immunity in public records cases is particularly frustrating because the whole point of the public records law is to empower the citizens to compel the government to comply with the public records law," Jones explained. "If the sovereign immunity defense is validated then it eviscerates the entire public records law."

Document: Read the AG's office brief in support of motion to dismiss

A spokesman for the North Carolina Department of Revenue declined to answer as to whether department leaders feel the agency can be sued for violating the Public Records Act.

A spokeswoman for Attorney General Josh Stein claimed the AG's office was seeking to dismiss the lawsuit on grounds other than sovereign immunity, even after a reporter pointed out such a defense is raised in the department's renewed motion to dismiss and supporting memorandum of law.

Stein's spokeswoman, Laura Brewer, provided the following statement in response to an email reiterating questions about whether the Attorney General believes state agencies can be sued for violating the Public Records Act and whether he feels a sovereign immunity defense is appropriate:

We disagree with the way you characterize the documents filed by the Department of Justice attorney.  State agencies can be sued under the Public Records Law, but in the case of your lawsuit, the state's attorney has argued that your claim is moot because the Department of Revenue has produced all the records sought in your Memorandum of Understanding.  The attorney has also argued, in the pages you cited, that an action under the Declaratory Judgment Act is not the technically correct way to bring a Public Records Law claim.  If your counsel believes the attorney's arguments are legally incorrect, we believe that discussion should be directed to the judge.

Brewer never answered whether Stein feels it is appropriate for lawyers in his agency to raise a sovereign immunity defense when representing agencies accused of withholding documents under the state's public records law but did say "the Attorney General has full confidence in the team handling this case."

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