{ "id": 8527677, "name": "S.E.T.A. UNC-CH, INC., Petitioner-Appellant v. WILLIAM D. HUFFINES, M.D., CHAIRMAN OF THE INSTITUTIONAL ANIMAL CARE AND USE COMMITTEE OF THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Respondent-Appellee", "name_abbreviation": "S.E.T.A. UNC-CH, Inc. v. Huffines", "decision_date": "1992-09-15", "docket_number": "No. 9110SC718", "first_page": "440", "last_page": "447", "citations": [ { "type": "official", "cite": "107 N.C. App. 440" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "40 ALR4th 333", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "weight": 2, "opinion_index": -1 }, { "cite": "672 F.2d 1262", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1142365 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/f2d/672/1262-01" ] }, { "cite": "364 U.S. 479", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171794 ], "weight": 2, "year": 1960, "pin_cites": [ { "parenthetical": "State statute forcing comprehensive disclosure was overbroad on First Amendment grounds where teachers might be intimidated or risk covert retaliatory use of the disclosed information" }, { "parenthetical": "State statute forcing comprehensive disclosure was overbroad on First Amendment grounds where teachers might be intimidated or risk covert retaliatory use of the disclosed information" } ], "opinion_index": 0, "case_paths": [ "/us/364/0479-01" ] }, { "cite": "487 U.S. 552", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1775136 ], "weight": 8, "year": 1988, "pin_cites": [ { "page": "565" }, { "page": "504-505" }, { "page": "565" }, { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/us/487/0552-01" ] }, { "cite": "417 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500290, 2499842, 2497925, 2497100, 2502519 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0284-03", "/nc/331/0284-01", "/nc/331/0284-02", "/nc/331/0284-04", "/nc/331/0284-05" ] }, { "cite": "412 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "105 N.C. App. 191", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521963 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/105/0191-01" ] }, { "cite": "388 S.E.2d 461", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "interpreting N.C.G.S. \u00a7 6-19.2" } ], "opinion_index": 0 }, { "cite": "325 N.C. 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2489154, 2490532, 2489640, 2489906, 2487766 ], "year": 1989, "pin_cites": [ { "parenthetical": "interpreting N.C.G.S. \u00a7 6-19.2" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0709-04", "/nc/325/0709-01", "/nc/325/0709-02", "/nc/325/0709-03", "/nc/325/0709-05" ] }, { "cite": "381 S.E.2d 187", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "parenthetical": "interpreting N.C.G.S. \u00a7 6-19.2" }, { "page": "189" }, { "page": "190" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 694", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527750 ], "weight": 2, "year": 1989, "pin_cites": [ { "parenthetical": "interpreting N.C.G.S. \u00a7 6-19.2" }, { "page": "696" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0694-01" ] }, { "cite": "399 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "interpreting N.C.G.S. \u00a7 6-19.1" } ], "opinion_index": 0 }, { "cite": "327 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2493472, 2496355, 2493582, 2497967, 2493167 ], "year": 1990, "pin_cites": [ { "parenthetical": "interpreting N.C.G.S. \u00a7 6-19.1" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0643-01", "/nc/327/0643-02", "/nc/327/0643-03", "/nc/327/0643-04", "/nc/327/0643-05" ] }, { "cite": "394 S.E.2d 217", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "220", "parenthetical": "interpreting N.C.G.S. \u00a7 6-19.1" }, { "page": "219-20" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 51", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526263 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "57", "parenthetical": "interpreting N.C.G.S. \u00a7 6-19.1" }, { "page": "56" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0051-01" ] }, { "cite": "493 U.S. 182", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11330834 ], "weight": 4, "year": 1990, "opinion_index": 0, "case_paths": [ "/us/493/0182-01" ] }, { "cite": "399 S.E.2d 340", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "101 N.C. App. 292", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527636 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0292-01" ] } ], "analysis": { "cardinality": 802, "char_count": 17749, "ocr_confidence": 0.771, "pagerank": { "raw": 1.6201068419871276e-07, "percentile": 0.687073454861654 }, "sha256": "c3503718e806534d5e1670e9f49fe166eda9aad04254b96252a3ca94e2e23fb1", "simhash": "1:17493472695b0c5e", "word_count": 2718 }, "last_updated": "2023-07-14T14:52:31.872261+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and GREENE concur." ], "parties": [ "S.E.T.A. UNC-CH, INC., Petitioner-Appellant v. WILLIAM D. HUFFINES, M.D., CHAIRMAN OF THE INSTITUTIONAL ANIMAL CARE AND USE COMMITTEE OF THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Respondent-Appellee" ], "opinions": [ { "text": "PARKER, Judge.\nPetitioner appeals from the trial court\u2019s determination that petitioner is not entitled to attorney\u2019s fees pursuant to N.C.G.S. \u00a7 6-19.2. Petitioner\u2019s amended motion requests reimbursement under N.C.G.S. \u00a7 6-19.2 in the amount of $32,356.53 for litigation expenses incurred in petitioner\u2019s action to compel respondent to disclose certain documents as required by N.C.G.S. \u00a7\u00a7 132-1 et seq., the Public Records Act. The four documents at issue describe proposed laboratory research on animal subjects at the Chapel Hill campus of the University of North Carolina.\nIn petitioner\u2019s prior appeal from a trial court judgment shielding these documents from disclosure, this Court held that respondent was required to disclose most of the contents of the applications for approval of laboratory animal protocols. S.E.T.A. UNC-CH v. Huffines, 101 N.C. App. 292, 399 S.E.2d 340 (1991). In particular, the Court held that (i) the applications at issue in the case did not contain trade secrets, contrary to the lower court\u2019s conclusion that the materials had federal and State statutory trade secrets protection; (ii) the First Amendment did not create a qualified academic privilege against disclosure of confidential records, under the authority of University of Pennsylvania v. EEOC, 493 U.S. 182, 107 L.Ed.2d 571 (1990), a U.S. Supreme Court decision announced 9 January 1990, several weeks after the lower court\u2019s judgment in. the present case; but (iii) public policy did protect the privacy interests of scientific researchers and their staff members in personal and professional information such as their names, telephone numbers, addresses, experience and departmenfal affiliations. Consistent with the resolution of the prior appeal, the trial court ordered respondent to disclose the requested documents with personal information redacted.\nN.C.G.S. \u00a7 6-19.2 provides as follows:\nIn any civil action in which a party successfully compels the disclosure of public records pursuant to G.S. 132-9 or other appropriate provisions of law, the court may, in its discretion, allow the prevailing party to recover reasonable attorney\u2019s fees to be taxed as court costs against the appropriate agency if:\n(1) The court finds that the agency acted without substantial justification in denying access to the public records; and\n(2) The court finds that there are no special circumstances that would make the award of attorney\u2019s fees unjust.\nN.C.G.S. \u00a7 6-19.2 (1986). Both N.C.G.S. \u00a7 6-19.2 and N.C.G.S. \u00a7 6-19.1, a closely analogous provision governing attorney\u2019s fees for private litigants who successfully appeal from or defend against agency action, give the trial court discretionary power to order a fee award once the court determines, as a matter of law, \u201cthat certain criteria are present.\u201d Tay v. Flaherty, 100 N.C. App. 51, 57, 394 S.E.2d 217, 220, disc. rev. denied, 327 N.C. 643, 399 S.E.2d 132 (1990) (interpreting N.C.G.S. \u00a7 6-19.1); see also N.C. Press Assoc., Inc. v. Spangler, 94 N.C. App. 694, 381 S.E.2d 187, disc. rev. denied, 325 N.C. 709, 388 S.E.2d 461 (1989) (interpreting N.C.G.S. \u00a7 6-19.2).\nThree criteria must exist before a trial judge can exercise statutory discretion under either N.C.G.S. \u00a7 6-19.1 or \u00a7 6-19.2. First, the party moving for attorney\u2019s fees must be a \u201cprevailing p\u00e1rty.\u201d See, e.g., House v. Hillhaven, Inc., 105 N.C. App. 191, 412 S.E.2d 893, disc. rev. denied, 331 N.C. 284, 417 S.E.2d 251 (1992). Second, the court must find that the agency acted without substantial justification; and finally the court must find there are no special circumstances making a fee award unjust. N.C. Press Assoc., Inc. v. Spangler, 94 N.C. App. at 696, 381 S.E.2d at 189.\nIn the present case the trial court found both that petitioner was the prevailing party and also that no special circumstances would make a fee award unjust. These two findings are not challenged on appeal. However, the trial court also found and concluded that it could not award fees \u201cwhen the evidence of record, as a matter of law, fails to demonstrate that the agency acted without substantial justification in denying access to the public records.\u201d Under our case law, the burden is on an agency to set out sufficient facts and legal theories to show substantial justification for nondisclosure. Id. at 698, 381 S.E.2d at 190. Finding the agency had made such a showing in this case, the trial court said it had to \u201creluctantly\u201d rule it was precluded from making a discretionary fee award.\nOn appeal petitioner argues that it is entitled to attorney\u2019s fees on the ground that none of respondent\u2019s proffered justifications for refusing petitioner access to the protocols had any reasonable basis in fact or law. We disagree. The test for substantial justification is not whether this Court ultimately upheld respondent\u2019s reasons for resisting public disclosure of the requested documents as correct but, rather, whether respondent\u2019s reluctance to disclose was \u201c \u2018justified to a degree that could satisfy a reasonable person\u2019 \u201d under the existing law and facts known to, or reasonably believed by, respondent at the time respondent refused to make disclosure. Tay v. Flaherty, 100 N.C. App. at 56, 394 S.E.2d at 219-20 (quoting Pierce v. Underwood, 487 U.S. 552, 565, 101 L.Ed.2d 490, 504-505 (1988)). We find such reasonable basis under the facts of the present case.\nIn Pierce the Court observed that \u201csubstantially justified\u201d did not connote \u201cjustified to a high degree\u201d but, rather, \u201cjustified in substance or in the main\u201d or for the most part. 487 U.S. at 565, 101 L.Ed.2d at 504. The Court specifically rejected an analysis that would require \u201csubstantial justification\u201d to meet the criteria of substantial correctness or reasonable justification: \u201c[A] position can be justified even though it is not correct, and we believe it can be substantially (i.e., for the most part) justified if a reasonable person could think it correct. . . .\u201d Id. at 566 n.2, 101 L.Ed.2d at 505 n.2. Applying these criteria to the present case, we hold the trial court correctly concluded, as a matter of law, that respondent had shown substantial justification for nondisclosure. Accordingly, the trial court properly determined that it could not exercise its discretion under N.C.G.S. \u00a7 6-19.2 and we affirm the trial court\u2019s denial of petitioner\u2019s motion for attorney\u2019s fees.\nBefore petitioner instituted its court action, it informally requested access to a number of different categories of records in respondent\u2019s possession. Respondent disclosed some materials and not others, on the ground that the latter group of documents did not come within the Public Records Act. Respondent subsequently explained to petitioner, by letter dated 17 April 1989, that the Attorney General was of the opinion that the laboratory protocols at issue in this case were undisclosable personnel records.\nPetitioner waited until 9 October 1989 to file its judicial application for access to the undisclosed documents. Effective 8 June 1989 the Public Records Act had been amended to recognize an exemption for trade secrets. N.C.G.S. \u00a7 132-1.2 (1990). Respondent asserted, in response to the judicial petition, that disclosure would violate the researchers\u2019 free speech and due process rights under the First and Fourteenth Amendments as well as their rights to trade secret protection under federal and State statutes. Sixteen affidavits from eminent scientific researchers in support of respondent\u2019s position were filed with the trial court. These affidavits expressed a number of realistic, overlapping concerns, including fears about (i) personal and family safety should animal researchers\u2019 names and projects be made public, (ii) university ability to attract and retain top-flight researchers if laboratory experiments were disrupted by animal rights activists, uninformed adverse publicity and inadvertent or intentional misappropriation of original ideas, (iii) premature exposure of novel ideas and methods, which might then be stolen by others before the research was even conducted and the results of that research published by the persons who originated the ideas and methods, (iv) the chilling effect on researchers\u2019 willingness to propose valuable experiments using primates and other animals closely related to man for fear of reprisals and harassment by animal rights groups, and (v) the threat to researchers\u2019 proprietary rights in patentable work. One affiant, contrasting the preferred private nature of applications for animal protocols and the mandatory public access to unpatentable ideas and methods in subsequent federal grant applications, stated he considered public disclosure at the latter, funding stage to be a \u201cquid pro quo which I gladly give for the sake of getting public support.\u201d\nAs to respondent\u2019s assertion of First Amendment rights, we hold that \u201ca reasonable person could think [such protection] correct.\u201d Pierce v. Underwood, 487 U.S. at 566 n.2, 101 L.Ed.2d at 505 n.2. While this Court in the prior appeal considered itself bound by 1990 U.S. Supreme Court precedent to reject academic freedom as a barrier to disclosure under the Public Records Act, University of Pennsylvania v. EEOC, 493 U.S. 182, 107 L.Ed.2d 571 (1990), it was certainly not clear in 1989, when respondent asserted this justification for nondisclosure, that an argument for such an extension of the law of qualified academic privilege was unreasonable. \u201cAlthough the meaning of constitutional academic freedom remains ambiguous, the Supreme Court has clearly recognized it as an unenumerated first amendment right . . . .\u201d David M. Rabban, A Functional Analysis of \u201cIndividual\u201d and \u201cInstitutional\u201d Academic Freedom under the First Amendment, Law & Contemp. Probs., Summer 1990, at 227, 300. However, \u201cit would still be quite incorrect to suggest that the protection of academic freedom is now reasonably secure. Assuredly it is not.\u201d William W. Van Alstyne, Academic Freedom and the First Amendment in the Supreme Court of the United States: An Unhurried Historical Review, Law & Contemp. Probs., Summer 1990, at 79, 153. See, e.g., Shelton v. Tucker, 364 U.S. 479, 5 L.Ed.2d 231 (1960) (State statute forcing comprehensive disclosure was overbroad on First Amendment grounds where teachers might be intimidated or risk covert retaliatory use of the disclosed information); see also Dow Chemical Co. v. Allen, 672 F.2d 1262 (7th Cir. 1982).\nPetitioner also argues that respondent\u2019s invocation of trade secrets protection had no reasonable basis in fact or law. In support of this argument, petitioner cites this Court\u2019s observations in the prior appeal that the blank application forms were very \u201cgeneral in nature\u201d and that petitioner had obtained the much more detailed federal grant applications for these same projects. The blank forms do not predict, however, what information will be supplied by a researcher for a particular project and neither trade secrets nor patentable ideas are disclosable, as a matter of law, under the federal Freedom of Information Act (\u201cFOIA\u201d) or our Public Records Act. In fact, this Court specifically recognized in the prior appeal the protection from public disclosure accorded such information.\nPortions of the federal applications may not be made public if the procedures therein could be patented. That is a valid basis for excluding information and we recognize it as such. No one has contended that any part of the four \u201capplications\u201d before us contains patentable ideas or procedures. If subsequent applications on the state level in North Carolina contain material which could be patented, that will surely be made clear to the court having cognizance.\nS.E.T.A. UNC-CH v. Huffines, 101 N.C. App. at 296, 399 S.E.2d at 343.\nPetitioner contends that its access under FOIA to the researchers\u2019 more detailed grant applications renders respondent\u2019s invocation of trade secrets protection virtually frivolous. Petitioner further contends that the trade secrets exemption was not available when respondent initially denied petitioner\u2019s request for disclosure, that none of respondent\u2019s affidavits point to a single trade secret in the requested documents, and that the applications describe processes and plans lacking in the necessary element of independent commercial value. However, this Court did not take the position in the prior appeal that respondent\u2019s argument bordered on the frivolous, but instead the Court was responding to respondent\u2019s contention that \u201call of the information contained in the applications constitutes confidential trade secrets.\u201d Id. The Court\u2019s in camera examination of the four applications at issue here revealed only that, as to \u201cthe questions relating to research objectives and justifications,\u201d these particular applications did not contain trade secrets. Id. at 297, 399 S.E.2d at 343. Petitioner would, however, have been blocked from securing access to trade secrets, had the researchers actually included such information, whether or not petitioner had obtained other parts of the grant applications under FOIA, as this Court intimated in the previous appeal.\nMoreover, the affidavits submitted to the trial court were not intended to provide descriptions of any particular research project within petitioner\u2019s request, but rather to state researchers\u2019 objections to automatic public access to preliminary applications containing their intellectual property and to describe individual researchers\u2019 experiences at the Chapel Hill campus with animal rights activists. While affiants do not mention trade secrets per se, they do allege certain proprietary rights, for instance, in their \u201cinsights, ideas and approaches\u201d (Exhibit C), and they raise the issue of patentability (Exhibits D, M and N) and associated jeopardy should patentable procedures be disclosed. As discussed above, these concerns were both reasonable in fact and valid in law.\nFinally, respondent\u2019s public policy argument on behalf of the privacy interests of researchers provided additional justification for respondent\u2019s position; and, indeed, this Court upheld that ground in the prior appeal. Id. at 296, 399 S.E.2d at 343.\nFor the foregoing reasons we affirm the trial court\u2019s order.\nAffirmed.\nJudges COZORT and GREENE concur.", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "Tharrington, Smith & Hargrove, by Douglas A. Ruley, and M. Alexander Charns, for petitioner-appellant.", "Attorney General Lacy H. Thornburg, by Chief Deputy Attorney General Andrew A. Vanore, Jr., and Special Deputy Attorney General Charles M. Hensey, for respondent-appellee." ], "corrections": "", "head_matter": "S.E.T.A. UNC-CH, INC., Petitioner-Appellant v. WILLIAM D. HUFFINES, M.D., CHAIRMAN OF THE INSTITUTIONAL ANIMAL CARE AND USE COMMITTEE OF THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Respondent-Appellee\nNo. 9110SC718\n(Filed 15 September 1992)\n1. Costs \u00a7 37 (NCI4th)\u2014 compelling disclosure of public records \u2014 award of attorney fees \u2014findings required\nBefore a trial judge can exercise statutory discretion under either N.C.G.S. \u00a7 6-19.1 or \u00a7 6-19.2 and award attorney fees to a party in a proceeding to compel disclosure of public records, the party moving for attorney fees must be a \u201cprevailing party\u201d; the court must find that the agency acted without substantial justification; and the court must find that there are no special circumstances making a fee award unjust.\nAm Jur 2d, Records and Recording Laws \u00a7 31.\n2. Costs \u00a7 37 (NCI4th)\u2014 compelling disclosure of public records \u2014 substantial justification for withholding \u2014 test for substantial justification\nPursuant to N.C.G.S. \u00a7 6-19.2 allowing an award of attorney fees in a proceeding to compel disclosure of public records if the agency acted without substantial justification, the test for substantial justification is not whether the court on appeal ultimately upheld respondent\u2019s reasons for resisting public disclosure of the requested documents as correct, but, rather, whether respondent\u2019s reluctance to disclose was justified to a degree that could satisfy a reasonable person under the existing law and facts known to, or reasonably believed by, respondent at the time respondent refused to make disclosure.\nAm Jur 2d, Records and Recording Laws \u00a7 19.\nWhat constitutes legitimate research justifying inspection of state or local public records not open to inspection by general public. 40 ALR4th 333.\n3. Costs \u00a7 37 (NCI4th)\u2014 compelling disclosure of public records \u2014 existence of substantial justification for withholding\nRespondent had substantial justification for denying petitioner access to records of laboratory protocols where the Attorney General was of the opinion that the matters at issue in this case were undisclosable personnel records; respondent was of the opinion that disclosure would violate the researchers\u2019 free speech and due process rights under the First and Fourteenth Amendments as well as their rights to trade secret protection under federal and state statutes; sixteen affidavits from eminent scientific researchers in support of respondent\u2019s position were filed with the trial court; and these affidavits raised concerns about personal safety of the researchers and their families, university ability to attract and retain researchers if laboratory experiments were disrupted by animal rights activists, premature exposure of novel ideas and methods which might be stolen by others, and the threat to researchers\u2019 proprietary rights in patentable work.\n* Am Jur 2d, Records and Recording Laws \u00a7 19.\nWhat constitutes legitimate research justifying inspection of state or local public records not open to inspection by general public. 40 ALR4th 333.\nAPPEAL by petitioner from order entered 23 April 1991 by Judge Donald W. Stephens in WAKE County Superior Court. Heard in the Court of Appeals 13 May 1992.\nTharrington, Smith & Hargrove, by Douglas A. Ruley, and M. Alexander Charns, for petitioner-appellant.\nAttorney General Lacy H. Thornburg, by Chief Deputy Attorney General Andrew A. Vanore, Jr., and Special Deputy Attorney General Charles M. Hensey, for respondent-appellee." }, "file_name": "0440-01", "first_page_order": 468, "last_page_order": 475 }