by Gary Beaver
On June 17, 2010, in State Employees Ass’n of NC, Inc., v. NC Dep’t of State Treasurer, the N.C. Supreme Court reversed the decision of the NC Court of Appeals affirming a trial court’s dismissal of a complaint seeking public records under the Public Records Act, NCGS §§ 132-1 to 132-10. The plaintiff sought records regarding the investment decisions and performance of the Retirement Systems Division of the Department of State Treasurer. Plaintiff began investigating after reading a February 2007 article in Forbes magazine about “pay-to-play” issues involving state retirement pension funds. The defendant had produced hundreds of pages of documents in several installments over the course of a year but plaintiff believed that defendant had not produced all it had.
The lower court had dismissed under Rule 12(b)(6) for failure to state a claim. The Supreme Court held that the allegations were based on reasonable inferences drawn by plaintiff from the documents that were produced. For example, one produced email referred to another email not produced. The Court rejected defendant’s contention that “possession” of the sought information is a necessary element of a Public Records Act lawsuit. The Court noted that NCGS § 132-9(a) provides the cause of action and it makes no mention of a possession element. The defendant can raise that as a substantive defense but it cannot act as the final authority in deciding possession or custody of the requested public records. To allow it to do so would undermine the strong public policy favoring release of public records to increase transparency in government.
This is a sound and needed decision. Given what we have seen in recent years from Jim Black and other “public servants” while our media sat idly by not, or belatedly, investigating or reporting misfeasance and malfeasance by elected and appointed officials, the Public Records Act is the public’s last, best hope at ferreting out and preventing corruption in government.
Showing posts with label Public Records Act. Show all posts
Showing posts with label Public Records Act. Show all posts
Wednesday, July 7, 2010
Wednesday, March 24, 2010
N.C. Court of Appeals Allows Charlotte To Withhold Documents - Were They Prepared For Reasonably Anticipated Litigation Or For Speculative Litigation?
by Gary L. Beaver
On March 16, 2010, in Wallace Farm, Inc. v. City of Charlotte, the North Carolina Court of Appeals affirmed the Mecklenburg County Superior Court's order preventing the plaintiff from inspecting certain public records held by the City of Charlotte. The City had produced over 21,000 pages of documents but withheld about 225 documents consisting of about 500 pages on grounds that they were protected from discovery because they were attorney work product materials prepared in reasonable anticipation of litigation. The lower court conducted an in camera review and agreed with the City.
Charlotte zoning inspectors had used an administrative warrant to search the plaintiff farm after complaints were made of odor from the farm's composting facility and allegations that the farm had grown beyond limits set in 1999 zoning regulations. The farm owners requested all public records from 1998 to 2008 referring to the farm. The City said it would comply but the plaintiff impatiently filed the lawsuit to compel production of the public records. The City asserted in a letter that the documents were prepared in anticipation of a legal proceeding that had yet to commence that being if the City was to take action against the farm pursuant to the complaints, the litigation that was reasonably anticipated to follow. At a hearing, the City added that the materials related to the City's research and consideration of legal strategies related to possible zoning enforcement. Despite the fact that the Public Records Act (in Chapter 132 of the NC General Statutes) provides for liberal access to public records and exceptions and exemptions to the Public Records Act must be construed narrowly, the appellate court, after its own in camera review, agreed with the City withholding the documents using an abuse of discretion standard.
These kinds of cases are difficult to evaluate because the courts necessarily cannot provide much detail about what is in the documents reviewed in camera. One would think that, in light of the Public Records Act's bias toward disclosure, a public agency would have to make stronger arguments than were presented here. For example, one does not see this type of leeway given by the courts to insurance companies withholding documents in reasonable anticipation of litigation that has much greater likelihood of occurring and where the Public Records Act does not provide a bias favoring disclosure. Why treat a public agency's work product claims with greater deference than a private insurer? However, without knowing what was in the documents, one cannot know whether the court's decision here was sound. Regardless, this case is likely to be cited by every public agency in NC that withholds a document based on work product claims further driving up the cost for private citizens to obtain public information.
On March 16, 2010, in Wallace Farm, Inc. v. City of Charlotte, the North Carolina Court of Appeals affirmed the Mecklenburg County Superior Court's order preventing the plaintiff from inspecting certain public records held by the City of Charlotte. The City had produced over 21,000 pages of documents but withheld about 225 documents consisting of about 500 pages on grounds that they were protected from discovery because they were attorney work product materials prepared in reasonable anticipation of litigation. The lower court conducted an in camera review and agreed with the City.
Charlotte zoning inspectors had used an administrative warrant to search the plaintiff farm after complaints were made of odor from the farm's composting facility and allegations that the farm had grown beyond limits set in 1999 zoning regulations. The farm owners requested all public records from 1998 to 2008 referring to the farm. The City said it would comply but the plaintiff impatiently filed the lawsuit to compel production of the public records. The City asserted in a letter that the documents were prepared in anticipation of a legal proceeding that had yet to commence that being if the City was to take action against the farm pursuant to the complaints, the litigation that was reasonably anticipated to follow. At a hearing, the City added that the materials related to the City's research and consideration of legal strategies related to possible zoning enforcement. Despite the fact that the Public Records Act (in Chapter 132 of the NC General Statutes) provides for liberal access to public records and exceptions and exemptions to the Public Records Act must be construed narrowly, the appellate court, after its own in camera review, agreed with the City withholding the documents using an abuse of discretion standard.
These kinds of cases are difficult to evaluate because the courts necessarily cannot provide much detail about what is in the documents reviewed in camera. One would think that, in light of the Public Records Act's bias toward disclosure, a public agency would have to make stronger arguments than were presented here. For example, one does not see this type of leeway given by the courts to insurance companies withholding documents in reasonable anticipation of litigation that has much greater likelihood of occurring and where the Public Records Act does not provide a bias favoring disclosure. Why treat a public agency's work product claims with greater deference than a private insurer? However, without knowing what was in the documents, one cannot know whether the court's decision here was sound. Regardless, this case is likely to be cited by every public agency in NC that withholds a document based on work product claims further driving up the cost for private citizens to obtain public information.
Subscribe to:
Posts (Atom)
Posts
