Appeals Court Hears Arguments In Alamance Records Case

RALEIGH — A three-judge panel of the North Carolina Court of Appeals on Monday heard arguments in a public records case pitting an Alamance County newspaper against the local school board in a dispute that could establish guidelines for resolving future government secrecy complaints.

Chief Judge Linda McGee and Judges Robert Hunter and Richard Dietz quizzed lawyers for both sides during the 50-minute hearing about the role of the state’s public records and open meetings laws in the case, as well as their opposing interpretations of related court precedents.

Media law attorney John Bussian, representing the Times-News, said this is an “extraordinarily important lawsuit” preserving public accountability of government action.

The newspaper wants minutes from a closed session of the Alamance-Burlington Board of Education discussing the departure of former school Superintendent Lillie Cox, who resigned and received more than $200,000 in severance a few months after her contract was renewed. The severance deal also included a provision that neither the board nor Cox would discuss the reasons for her dismissal and severance.

Bussian said judges should follow the North Carolina open meetings law, which orders closed meeting minutes to be released after the passage of time erodes any need for secrecy. All exemptions from the law have “a fuse” that eventually triggers their public release, he said.

School board attorney Debra Stagner instead said the state public records law overruled the open meetings statute. “Personnel records remain confidential indefinitely,” Stagner said. “The legislature has not seen fit to put a deadline on when those records somehow become public records.”

She noted that personnel information as one of nine exceptions to disclosure written into the public records law.

“That school board records secrecy law doesn’t trump the open meetings law requirement that minutes have to be disclosed at some point,” Bussian said. “The minutes have to show why the person’s employment terminated so the public can understand why the school board wrote a $200,000 check to have her leave.”

The judges repeatedly asked how a ruling that favored the newspaper would affect trial courts across the state.

The Times-News argues that then-Wake County Superior Court Judge Lucy Inman erred by dismissing the case without holding a hearing to review the evidence. She not only issued her decision before newspaper attorneys could interview school board members under oath but also failed to review the materials to determine if they must be made public.

Hunter said he was “struggling” to develop a standard the Appeals Court could use for trial courts to apply to future disputes involving personnel records and closed meetings.

“Let’s say we send [the case] back down to trial court,” Hunter said. “Eventually someone would get to look at the records,” likely in private, and determine what if any of the minutes should be redacted or provided.

Both sides cited the landmark 1992 Supreme Court decision in News and Observer v. Poole Commission to buttress their cases.

In that case it was ruled personnel records involving improprieties by former N.C. State basketball coach Jim Valvano should be made public, even though they were part of closed meeting minutes, because keeping them secret no longer served a useful purpose.

Bussian said that case is analogous to the Times-News case.

“I think the Poole decision has been terribly misapprehended and misconstrued” by the newspaper’s legal team, Stagner said.

She argued that the Supreme Court allowed the release of closed session minutes from the UNC Board of Governors — that included Valvano’s personnel records — because the records were in the hands of the Poole Commission, which was not Valvano’s employer.

Stagner said the Alamance case was different, and the minutes should remain secret.

“How do we know that? We haven’t seen the records,” Hunter asked of the claimed exception.

“I really don’t understand as a taxpayer how the expenditure of public funds can be considered a personnel matter. But maybe it can. Maybe you can convince me otherwise,” Hunter said. “What’s the problem with giving it to the judge and letting him or her look at it and make a call?”

“This case involves different statutes that if they’re conflated and not understood properly and harmonized you could end up with the wrong outcome, and that’s where the trial court erred,” said attorney Mark Prak. He is representing the North Carolina Association of Broadcasters, which filed a friend of the court brief supporting the Times-News.

Prak said that since lawyers for the school board wrote the closed session minutes, the court should be skeptical.

“This is a democratically elected school board that spent $200,000 plus of public dollars, and would like to be able to immunize that by saying, ‘Oh, we wrote our minutes in such a way that they’re all personnel records and they’re exempt forever,’” Prak said.

Records are sealed and unsealed “all the time,” Prak said. Sufficient information can be released about a situation without divulging sensitive material, he said. He cited the recent dismissal of a Duke University men’s basketball player and how the information was revealed without violating federal student privacy laws.

Dan E. Way (@danway_carolina) is an associate editor of Carolina Journal.