A watchdog group has asked North Carolina’s highest court to determine the meaning of a single sentence in state law. The outcome could have a major impact on public access to information about University of North Carolina research.
The case also could shed new light on the origin of the COVID-19 virus.
The group US Right to Know touts itself as a “nonprofit newsroom and public health research group.” Within months of 2020’s widespread COVID shutdowns, the group sought information from UNC Chapel Hill. Public records requests targeted professor Ralph Baric “and his collaboration with the Wuhan Institute of Virology” in China.
University officials eventually pulled more than 88,000 pages of documents related to records requests. But US Right to Know ended up seeing only a fraction of those pages.
A state law approved with bipartisan votes in 2014 stood in the way.
“Research data, records, or information of a proprietary nature, produced or collected by or for state institutions of higher learning in the conduct of commercial, scientific, or technical research where the data, records, or information has not been patented, published, or copyrighted are not public records,” according to NC Gen. Stat. § 116-43.17.
UNC cited this research exemption when holding back many of the documents US Right to Know requested. The watchdog group filed suit in 2022. A trial judge sided with the university in 2024.
US Right to Know appealed.
“Rather than applying the narrowest possible definition to the statute, the trial court instead erroneously applied the broadest possible interpretation of the research exemption,” the group’s lawyers argued.
“The scheme of the Public Records Act is that the records produced by our government, with our money and our employees, elected officials, or appointed officials, belong to the people and unless it is absolutely certain that the record should not be produced pursuant to a narrowly-defined exemption or exception, it must be produced,” the court filing added.
The watchdog group argued that the words “of a proprietary nature” in state law referred to research data, records, or information. The group also contended that the word “proprietary” was equivalent to “trade secret.” This “is an appropriate and straightforward reading that would advance the dual purposes of the legislature to have access to records as broad as possible while reading exclusions as narrow as possible.”
A conflicting interpretation applied the “proprietary” label only to the word “information.” Such a reading would leave university research data and research records exempt from disclosure. Both the university and the trial judge supported the latter interpretation. The original court ruling also rejected US Right to Know’s “trade secret” argument.
“The broad interpretation given by the trial court to the word ‘proprietary’ nearly, if not completely, causes the exception to swallow the rule, making almost all university records relating in any way to research not subject to disclosure,” the group’s lawyers argued.
State lawmakers “could not have intended to exclude such a vast number of records from the [Public Records] Act’s purview,” US Right to Know contended. “It is much more likely that the General Assembly recognized the competitive nature of scientific research among the nation’s universities and simply sought to shield and protect against disclosure information that was akin to a trade secret in the commercial context.”
A unanimous three-judge state Appeals Court panel disagreed.
The “context of the plain text does not indicate the phrase ‘of a proprietary nature’ modifies any other term apart from ‘information,’” Judge Jefferson Griffin wrote in January. The “legislature’s intent, as derived from the text,” also supports that interpretation, he added. Lawmakers “used different sentence structures than the one at issue” when exempting proprietary information in other Public Records Act provisions.
Appellate judges also refused to endorse US Right to Know’s definition of “proprietary.” “[W]e decline to, and in fact cannot, swap the definition of ‘trade secret’ for ‘proprietary information,’” Griffin wrote.
Now the watchdog group hopes North Carolina’s highest court will reverse course.
“The COVID-19 pandemic caused a seismic shift in the social, medical, political, and legal landscape of not only the State of North Carolina, but the entire world,” US Right to Know’s lawyers wrote. “The documents to which USRTK seeks access may hold answers or a path toward the answer of the origins of COVID-19.”
This case raises an interesting question beyond headline-grabbing disputes involving COVID: What is the public’s right to access information about state university research? It will be interesting to see whether the North Carolina Supreme Court chooses to help answer that question.
Mitch Kokai is senior political analyst for the John Locke Foundation.