N.C. Supreme Court Broadens Protections of Public Records Law

The state Supreme Court has overturned an appellate ruling in a public records case filed by the State Employees Association of North Carolina after the association tried but failed to get information about investments by former state Treasurer Richard Moore.

In the court’s unanimous 14-page decision, Justice Edward Brady reaffirmed that government records are owned by the people and that the mechanism for enforcing the public’s right to know shouldn’t be left in the hands of the state agency that has the records.

The high court reversed a decision from the N.C. Court of Appeals, which had upheld a trial court order dismissing the lawsuit, and sent the case back to the appellate court.

“This ruling is a victory for state employees’ retirement security, open government, and public accountability from its elected officials,” said Dana Cope, the executive director of the employees association.

John Bussian, an attorney for the North Carolina Press Association and the North Carolina Association of Broadcasters, said the decision is “the most important statement by the North Carolina Supreme Court on open government in 20 years.”

Heather Franco, a spokeswoman for current state Treasurer Janet Cowell, declined to comment. Moore did not respond to a phone call and e-mail.

Brady noted that the employees association had been denied access to the records despite the association’s executive director writing five letters to the treasurer’s office from March 2007 to January 2008. He also noted that some of the correspondence that was turned over to the employees association referred to other material that had not been provided to the employees association.

“Plaintiff’s allegations that additional public records exist that have not yet been disclosed are based on reasonable inferences,” Brady wrote.

The employees association asked Moore in March 2007 for records including investment reports and information about fund managers after Forbes magazine published an article critical of Moore.

The magazine had written that Moore, who solely was responsible for investing $73 billion in state pension money, “has parlayed this clout into one of the biggest fundraising machines in the state by eagerly accepting contributions from dozens of financial firms.”

SEANC also asked for documents that the treasurer’s office provided to Forbes and information about the law firm that the treasurer’s office used in a dispute with Forbes.

Moore provided SEANC about 700 pages of documents, but the employees association said they did not satisfy the request. Moore’s office told the employees association that it should indicate specifically what it thought was missing.

After repeated requests for the information, SEANC sued the treasurer’s office and Moore in February 2008.

A Wake County court dismissed the case, and in a divided opinion the appeals court upheld the dismissal, finding that the lawsuit by SEANC failed to make a valid claim under the Public Records Act. The lawsuit alleged that the treasurer’s office didn’t provide part of the requested records but didn’t say that the treasurer’s office actually had those records.

The North Carolina Press Association and the North Carolina Association of Broadcasters filed a brief supporting the employees association, arguing that the appellate court’s decision departs from law governing cases brought under the Public Records Act. They said the Court of Appeals and the trial court should not have placed the burden on SEANC to show that the treasurer’s office was withholding specific public records.

“How is the public or the press supposed to know what the government is hiding when they can’t see it?” Bussian asked.

The high court had not issued a lengthy opinion on public records in about two decades.

The decision comes as public records advocates are pushing for the state Senate to adopt a bill that would allow successful plaintiffs in public records cases to recover attorney fees. The House has approved the bill.

The employees association also is pushing to end North Carolina’s system of having the state treasurer be solely responsible for investing pension money. The association favors having a board make the investment decisions. In 2007, a bill to establish a Retirement System Board of Trustees was introduced in the General Assembly, but died in committee.

Sarah Okeson is a contributor to Carolina Journal.