Defining North Carolina's Public Records and Open Meetings Fee-Shifting Provisions in the Larger National Context

Abstract

North Carolina’s Public Records and Open Meetings laws both provide for awards of attorney’s fees in certain situations. The Public Records law awards fees to a plaintiff who “substantially prevails” and a government defendant who is sued in bad faith or on a frivolous basis. The Open Meetings law awards fees to any party that “prevails.” These fee awards act as an incentive (or disincentive) for litigants to pursue these “open government” cases. Such awards are the exception to the general North Carolina rule that a party bears the burden of paying its own attorney’s fees. There is very limited appellate case law interpreting when a party should receive such an award of attorney’s fees. This limited case law is exacerbated by the recent modification of the plaintiffs’ fee-shifting provision in the Public Records law. While appellate treatment of this issue is limited, there is a larger body of trial court decisions and persuasive case law on point. There are also materially similar fee-shifting provisions elsewhere in the North Carolina General Statutes that can provide guidance on how North Carolina courts treat fee shifting. This Article examines these and other sources in pursuit of a better understanding of when a plaintiff or defendant in an open government case might expect to receive an award of attorney’s fees and, when appropriate, makes recommendations about how courts and practitioners should treat these provisions moving forward.