26 Feb Records suit spins wider web of questions – NC LAWYERS WEEKLY
NORTH CAROLINA LAWYERS WEEKLY
By David Donovan
When a Durham attorney sued the North Carolina Division of Employment Security last year over its decision to stop making notices of unemployment appeals hearings available to attorneys, her counsel, Jim White, looked at it as a straightforward Public Records Act case. He never expected that the lawsuit would lead to the U.S. Department of Labor getting involved, or to the N.C. General Assembly passing a new law that appears to be aimed at his client’s case. But both sides agree that the case has taken some unexpected turns since then.
The plaintiff in the case, Monica Wilson, sued DES in March 2014 after it announced it would no longer make the notices available to attorneys each day, arguing that they were public records. The lawsuit quickly caught the attention of officials at the DOL, who sent DES a letter saying that the practice of sending out the notices violated federal regulations to enforce privacy laws and shouldn’t have been available regardless of state law.
But White argues that a second letter published by the DOL actually encourages states to make available the sort of information that Wilson is seeking. And he argues that the change in state law violates parts of the state’s constitution that ensure open access to the courts.
“We contend that this is an issue of access to the courts. If someone can’t get access to these hearing notices, they can’t get access to the court. It’s clear the DOL says it’s fine to release the names of the parties,” White said. “But putting confidential information on a document doesn’t protect it from disclosure. The proper thing for DES to do would have been to redact [the confidential information] and produce the hearing notices.”