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Q&A: Bussian, leading defender of Press Freedom, finds fault with N.C. Transparency Laws

By Kari Travis, Carolina Journal- John Bussian is the principal of the Bussian Law Firm, which specializes in media litigation and has long been a national leader in defending the First Amendment.

Media and intellectual property attorney John Bussian ranks North Carolina in the bottom 10 nationally among states in defending open government. (CJ photo by Don Carrington) 

Bussian and the firm, as its website says, have litigated myriad libel and open government issues, as well as subpoenas directed to newsrooms, courtroom and court records access disputes, and circulation, advertising, and intellectual property matters in state and federal courts across the country.

The firm represents Carolina Journal, as well as McClatchy newspapers — publisher of the News & Observer — and other North Carolina newspapers and media interests in Florida, Texas, and Kentucky, as well as newspapers of the N.C. Press Association and the Southern Newspaper Publishers’ Association.

The firm also specializes in business litigation and intellectual property.

Bussian, who holds a bachelor’s degree from Duke University, earned his juris doctorate from Georgetown University in Washington, D.C. He sat down with CJ Associate Editor Kari Travis in February to discuss the state of government transparency and the misuse of public records laws in North Carolina.

KT: You’ve had significant experiences in the space of government transparency and public records. What is the overwhelming attitude of public officials toward public records and open meetings laws? Are we in a more transparent government space, or is it more closed-off than ever?

JB: We live in a place, a country, that so values free press and free speech rights that it sets us apart from the world — and we all enjoy the same privileges that way. To some degree, that’s true. But when we get down to the “right to know” about government, for most people, it really comes down to how much access they have to meetings and records from local governments.

Most people don’t get into the conversation about what’s going on in Washington. For the average person, it’s about what’s happening at home, in your city, or your town, or your county, or your capital. So, depending on where you live, you can have great access, and you have public officials in some state legislatures that generally support those traditions. I’ll start with the best of the best: Florida, followed by maybe Texas, and Ohio, and California. You can line up about 35 other states behind those.

For example, you could walk into [any government] in Florida and ask for the personnel file of somebody … and they would hand it to you. It’s a travesty, really, that you don’t have that right in North Carolina. So, it puts North Carolina in the bottom 10 states in the country when it comes to the most important things that most journalists value, and that most people would value if they really understood what they are — and aren’t — getting to see.

Can we see hiring, firing, and performance records for all our government officials at the local and state level? As far as North Carolina goes, no, you can’t. … There is a lot that needs to be improved when it comes to the state public records and open meetings laws. Most lawmakers have fallen into the rut of supporting this odd culture of secrecy instead of supporting those core records and meetings that we’d like to see. You can’t find a lot of people at this state’s capital who want to go and pass a law that would give us the same access people have in Florida.

The public–sector groups that surround a lot of this conversation … are lined up against [transparency] at every turn. The teachers. The sheriffs. The state employees. The League of Municipalities. The county commissioners. The list goes on. They absolutely stand in the road when it comes to [us] seeing their performance records, their hiring records, their termination records. It’s crazy.

They work for us. So, it’s an outrage.

KT: What is your policy agenda this year? What proposals are you bringing before the General Assembly?

JB: We are really just trying to hold the ground we have. Right now,, we are trying to sort out who is left — after this most recent election — as far as advocates for the [public’s] right to know. [Those lawmakers] are few and far between. Part of it, truthfully, is that if you run a bill in this climate right now … until you know who is really behind you and how much you can count on them, our opponents are just as likely to come out of the weeds and say, “Forget about improving it. We want to roll it back.”

You go talk to some people in [state] leadership and they’ll say, “We think the press and the public abuse their public records rights. They ask us for too much stuff. And the scope is too broad, and it costs too much money, and we don’t have the people to do it, so let’s put some brakes on this.”

The danger in running one of these bills right now is that it could make matters worse. So, it’s a big political calculation about when to do this. I think we’re probably a couple years away from having the juice to make one of these improvements fly. Right now, we’re just trying to make sure it doesn’t get worse.

KT: How do we help politicians see transparency as politically expedient?

JB: It would be great if we could get everybody committed before they run to support [public records] rights. We should ask, “How do you feel about improving public records law?” It’s just an open question we could ask everybody. And you might get some waffling, but if [political candidates] get where you’re coming from, maybe they’ll be true to their promises.

I’ve learned the hard way that you can’t count on a lot of things people tell you face-to-face, and I try not to be jaded about that. But eventually you’d like to think there would be a groundswell of people who feel they have the right to know [about government actions]. Most people don’t know that we’re in the bottom 10 states in the country when it comes to this stuff. The average person relies on [journalists] to give them access to really important stuff, but they need to understand that [journalists are] working with at least one hand tied behind [their] back. To get the public to value that enough to vote for the woman who wants [more public records] and against the guy who doesn’t — that’s a tough thing.

KT: What three simple changes would you make in N.C. law to expand access to public records?

JB: [I would like to see] hiring, firing, and performance records for obvious reasons. So that’s three things — but it’s really one: access to government personnel files. Information that matters. Name, rank, and serial number, great. Previously, we couldn’t get access to compensation records for even the highest level of government employees. All you could get was “current salary.” The state hospital system had all these highly paid officers and executives, and they [would get boxes at] Carolina Panthers games. But you couldn’t get access to that information, and it took an act of the legislature to get the public the right to see who is getting paid what. We made a little bit of headway 10 years ago.

There has been no headway since then, so we really would want that.
I would love to see us get complete, unfettered access to economic development and incentive records. All the deals that are cut and the money that is offered [to big companies]. It would be nice to see what they’re offering, but also see what they’re being offered before they get it. [Companies] say they can’t stay in the game competitively when they do that. I don’t believe that. You go to some other states and they do it.

And this is another thing we could do — we could put a fuse in the law that would say [government agencies] would have to respond and produce records within 20 days. We don’t have that kind of fuse in our law. Florida does. Texas does. It’s an easy thing to do. So why not?

KT: Traditional newsrooms continue shrinking, making transparency in government harder to pursue. How can non-journalist residents keep tabs on what’s going on in their town, county, and state?

JB: Ground level, there’s got to be a surrogate [information source]. I just don’t think the average person can take time out of his or her job or working life to sit down and focus on what they need to be watching and ask why. [When it comes to] government and economic development incentives, if people knew how much it was going to cost them, how much we were promising to spend per job we create, they might go, “Heck, you can write a check to everybody in North Carolina for $100 and you’d still save money — versus what they’re handing out to these big companies.” Now, I know it’s not that simple, but people actually might react if they knew.

But they’re not going to go ask the Department of Commerce for this stuff, and if you’re not there, and somebody else isn’t there to do it for them, I just don’t know where we would be in this conversation. So, the average person needs to value Carolina Journal or whoever is doing research in their community.

I hate to say it, but most people can’t connect the dots on their own.

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