Media coalition targets Charlotte public records dispute at NC Appeals Court

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  • A media coalition is backing WBTV's bid at the N.C. Court of Appeals to secure surveys filled out by Charlotte City Council members in 2020.
  • A trial judge rejected the TV station's request. Charlotte argued in court that it didn't possess the requested documents.
  • In seeking to file a friend-of-the-court brief, the media group argued “vital journalism would be hampered — and sometimes impossible — if the government’s interpretation of the Act is adopted.”

A coalition of media groups is taking interest in a public records dispute at the N.C. Court of Appeals. The case involves WBTV’s request for surveys completed by members of the Charlotte City Council in late 2020.

The coalition filed paperwork Thursday seeking permission to file a friend-of-the-court brief in the case. The court granted the request Friday. The group opposes a trial court’s decision rejecting WBTV’s attempt to access the surveys.

The city argued it did not have possession of the surveys and couldn’t provide them to a WBTV reporter. The coalition challenging that argument includes McClatchy, the parent company of the Raleigh News and Observer and Charlotte Observer, along with WRAL-TV.

“This case concerns whether a government agency may disclaim its obligations to disclose records under the Public Records Act, …on the ground that the requested documents are in the actual possession of a third-party contractor, even when the agency has retained control over those records,” according to the media group’s court filing. “The answer to this question will have broad ramifications for government transparency in North Carolina. If this narrow interpretation of the Act is adopted, agencies could avoid scrutiny simply by transferring records to private parties.”

The media group argued “vital journalism would be hampered — and sometimes impossible — if the government’s interpretation of the Act is adopted.”

“[C]ourts in multiple states have ruled that records are still subject to disclosure if the government is in constructive control of them, regardless of whether they are in the actual possession of a third party,” according to the filing.

WBTV explained the reason for its record request when filing suit.

“The City of Charlotte Council members famously can’t get along. Like other companies that turn to team-building exercises such as ropes courses and trust falls, Charlotte hired outside consulting firm Ernst & Young, signing a multi-year contract worth up to $400,000. But unlike other companies, the City of Charlotte … is a public agency subject to the North Carolina Public Records Act, and City taxpayers are entitled to review how their tax dollars are being spent,” according to the initial complaint.

The television station sought access to surveys city council members completed in connection with the Ernst and Young contract. “This information was solicited from these public officers as part of EY’s consulting services to the City, and the firm analyzed Council members’ responses in order to provide recommendations on how they could learn to better work together. The survey work alone cost the City $46,500.”

“The contract between Charlotte and EY clearly states that the City has exclusive ownership of the Council members’ survey responses,” according to the lawsuit. “But in letters denying WBTV’s public records requests, the City claims that because the survey responses are not in the City’s custody, it does not have to produce these surveys. The City’s position is plainly in violation of North Carolina law.”

“[P]ublic records provided to Plaintiff indicate that Defendants ordered EY to dispose of at least one survey response and to not collect Council member responses to certain survey questions,” WBTV argued. The TV station “believes the City did so to evade the creation and maintenance of public records in response to requests like WBTV’s.”

The lawsuit asked the court to declare that the surveys are public records, that Charlotte must collect them from the contractor and make them available “for inspection and examination,” and that any city request for Ernst and Young to dispose of records violated state law.

In addition to McClatchy and WRAL-TV, the media coalition features Gannett, Sinclair Broadcast Group, N.C. Press Association, N.C. Open Government Coalition, Reporters Committee for Freedom of the Press, Center for Investigative Reporting, Committee to Protect Journalists, Freedom of the Press Foundation, International Documentary Association, Media Institute, National Association of Black Journalists, National Freedom of Information Coalition, National Newspaper Association, National Press Club, National Press Club Journalism Institute, National Press Photographers Association, News/Media Alliance, Radio Television Digital News Association, Society of Environmental Journalists, Society of Professional Journalists, and Student Press Law Center.

The Appeals Court has not scheduled a hearing in the case.