In 2008-2009, a legal battle took place in Guilford County Superior Court over whether third-party investigations into city police departments are subject to our state’s public records law. The issue is one of great importance for advocates of government transparency, as citizens have a right to know what sort of wrongdoing is happening at their expense. Despite that legal battle ending in the citizens’ favor, the story took an unexpected turn, ultimately leaving a gaping hole in North Carolina’s public records jurisprudence.
North Carolina’s public records laws are found in N.C. Gen. Stat. §§ 132. These statutes set out a broad policy that “the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law.” If this policy sounds too good to be true, that’s because it is. Citizens sometimes even have to go so far as to wage legal battles in order to gain basic access to public records. It is in these legal battles that courts give definition and meaning to statutes that otherwise can be vague and difficult to understand.
One of the most often-cited exceptions to the public records law is the “personnel exception.” This exception, found in N.C.G.S. § 160A-168, states that “Notwithstanding [the public records law], personnel files of employees, former employees, or applicants for employment maintained by a city are subject to inspection and may be disclosed only as provided by this section.” So, an employee’s personnel file is generally not subject to public records requests. The question, then, is what constitutes an employee’s “personnel file.”
Generally, information is a confidential personnel record when it is (1) gathered by the government employer (2) with respect to a government employee. However, this broad definition still leaves questions unanswered. When investigations into government employees turn up misconduct, citizens clearly have an interest in knowing what sort of wrongful actions have occurred at their expense, but governments often state that these investigations are confidential personnel records and refuse to disclose them.
In the autumn of 2005, the City of Greensboro contracted with Risk Management Associates (RMA) to conduct an investigation into the Greensboro Police Department (GPD). The alleged misconduct included racially discriminatory practices by police chief David Wray and other officers. RMA eventually concluded its investigation, and then gave its report to City Manager Mitchell Johnson. Chief Wray eventually resigned under the understanding that he otherwise would be fired.
On November 6, 2007, Roch Smith, Jr. and Samuel Spagnola submitted a public records request to the city asking for the RMA report. Smith, a local journalist and Spagnola, an attorney, believed that the report was a public record subject to disclosure pursuant to N.C.G.S. §§ 132. They relied in large part on News and Observer Publishing Company v. Poole, a 1992 North Carolina Supreme Court case which held that – under a different personnel statute – information gathered by a third party investigator was not “gathered by” the government employer, and therefore was a public record subject to disclosure.
The city disagreed. In a letter dated March 7, 2008, then-City Attorney Becky Jo Peterson-Buie wrote to the two men:
“It is my understanding you cited News and Observer Publishing Company v. Poole…as authority that the RMA report is subject to disclosure as a public record…Based upon review of the aforementioned case, neither the court’s holding nor its rationale tend to support the proposition that the RMA investigative report is subject to disclosure…[B]ased on my understanding of the Public Records Law, the City of Greensboro will not provide you with a copy of the RMA Report because it is not a document falling within the definition of a public record.”
Three weeks later, Smith and Spagnola filed suit in Guilford County Superior Court. They alleged, among other things, that “Information gathered by RMA as a result of their third party investigation cannot be protected from public disclosure pursuant to the rule in [News and Observer v. Poole].”
Almost a year later, Judge John O. Craig, III issued his ruling. He ordered that redacted copies of the Executive Summary, Introduction, and Appendix of the RMA Report be produced as public records. However, he did not award attorneys’ fees, as the public records law at the time prohibited an award of attorneys’ fees if the defendant had relied on the advice of any attorney in denying the underlying public records request. This rule has since been amended to make it easier for attorneys to win fees in public records cases.
At this point, the issue would normally be appealed, and our state’s appellate courts would provide clarification on a controversial issue on which both sides had reasonable arguments. But that’s not what happened – because the RMA report was leaked right after Judge Craig’s ruling, and the case was never appealed. Technically, either party could have still appealed notwithstanding the leak due to North Carolina’s relatively flexible mootness doctrine. That doctrine allows issues of great importance to be treated by appellate courts even after the underlying facts have been resolved. But with the report out in the public arena, neither party appealed, and the case was closed.
To this day, the only case treating whether such investigative reports are public records is from Guilford County Superior Court. Had the underlying report not been leaked, we almost certainly would have had a statement from our state’s Supreme Court as to how such investigations are to be treated. That being the case, we are left with one Superior Court decision that, while helpful, is of limited precedential value.
Ultimately, it will be up to North Carolina attorneys to continue vigorously litigating for expanded records access. If the North Carolina Supreme Court someday rules that third-party investigative reports are not public records, so be it. But until that day comes, the onus is on our state’s bar to pave the way towards a more transparent future.