The CMLP recently received the following question from a reader of our Legal Guide, and we thought it would be useful to post the question and our response in the Forums:
In North Carolina, what is the procedure to follow when, in response to a public records request, the public information presented to the requestor is incomplete? What assurances does a requestor have that he or she is receiving all the information requested, and what support is needed to guarantee that all the information is provided?
A failure to provide a complete response to a request for documents is, legally, the equivalent of a refusal to provide documents. Accordingly, a requestor has the same remedies as if the request had been denied -- namely, the right to file an accelerated lawsuit under N.C. Gen. Stat. § 132-9. The statute provides for an award of attorneys' fees if the suit is successful, unless the agency from which records are requested can show that it reasonably relied on a court judgment, order or opinion, or a written opinion, decision or letter from the Attorney General's office, in withholding the records. If attorneys' fees are awarded to a requestor, the court may require any public official who has knowingly or intentionally committed, caused, permitted, suborned, or participated in a denial of access to records to be personally responsible for some or all of the fees. More about North Carolina's Public Records Law can be found in our Legal Guide.
Where some records have been produced, the requestor will have the burden of proof to show that other records were withheld in response to a particular request. You might be able to do this by examining the records that have been produced and identifying any obvious gaps. For example, if you were requesting copies of meeting minutes for weekly meetings of a particular government agency, you might be able to identify records not produced by examining the dates of the meetings for which minutes were provided, identifying any missing weeks, and then confirming through other sources that meetings were in fact held during the missing weeks.
If you file a lawsuit based upon evidence that records have been withheld, you might also be able to use discovery in the lawsuit to identify additional records that have not been produced. However, you should be careful not to file a lawsuit merely to pursue a fishing expedition for additional documents if you have not been able to confirm that some documents have actually been withheld; lawsuits that are filed without a good faith basis to believe that records have been withheld may be punished with an award of attorneys' fees against the requestor. See N.C. Gen. Stat. § 132-9(d).
A court is unlikely to find that a public official has engaged in a knowing or intentional effort to deny access to records unless you can show either a pattern of withholding by that particular individual or that the records withheld are so basic that a claim that the official "overlooked" the records is not credible. However, your ability to recover attorneys' fees in a lawsuit to compel production of records does not depend on whether you can demonstrate that a particular person has knowingly or intentionally withheld records. See N.C. Gen. Stat. § 132-9(c).
Note also that North Carolina law provides for mediation of public records disputes. See N.C. Gen. Stat. § 7A‑38.3E. You may request mediation with the court before filing a lawsuit, and must request mediation after filing a lawsuit. The mediation process may allow you to discover more about the efforts that a public agency has made to locate records responsive to a request; however, your ability to use, in a lawsuit, any information discovered in the course of mediation is likely to be very limited.