{ "id": 8526120, "name": "THE DURHAM HERALD CO., INC., CHAPEL HILL PUBLISHING, INC., THE NEWS AND OBSERVER PUBLISHING CO., THE CHATHAM NEWS PUBLISHING COMPANY, and THE NORTH CAROLINA PRESS ASSOCIATION, INC., Plaintiffs v. THE NORTH CAROLINA LOW-LEVEL RADIOACTIVE WASTE MANAGEMENT AUTHORITY, Defendant", "name_abbreviation": "Durham Herald Co. v. North Carolina Low-Level Radioactive Waste Management Authority", "decision_date": "1993-06-15", "docket_number": "No. 9210SC542", "first_page": "607", "last_page": "614", "citations": [ { "type": "official", "cite": "110 N.C. App. 607" } ], "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": "N.C. Gen. Stat. \u00a7 132-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": -1 }, { "cite": "N.C. Gen. Stat. \u00a7 132-9", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": -1 }, { "cite": "328 S.E.2d 437", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4721484 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0200-01" ] }, { "cite": "314 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "797" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 191", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526861 ], "year": 1984, "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0191-01" ] }, { "cite": "213 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "294" } ], "opinion_index": 0 }, { "cite": "287 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561054 ], "year": 1975, "pin_cites": [ { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0076-01" ] }, { "cite": "370 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516910, 2513367 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0610-01", "/nc/322/0610-02" ] }, { "cite": "367 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "658" } ], "opinion_index": 0 }, { "cite": "322 N.C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516033 ], "year": 1988, "pin_cites": [ { "page": "276" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0271-01" ] }, { "cite": "418 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "235", "parenthetical": "quoting Lemons v. Boy Scouts of America, Inc., 322 N.C. 271, 276, 367 S.E.2d 655, 658, reh'g denied, 322 N.C. 610, 370 S.E.2d 247 (1988" } ], "opinion_index": 0 }, { "cite": "332 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508082 ], "year": 1992, "pin_cites": [ { "page": "144", "parenthetical": "quoting Lemons v. Boy Scouts of America, Inc., 322 N.C. 271, 276, 367 S.E.2d 655, 658, reh'g denied, 322 N.C. 610, 370 S.E.2d 247 (1988" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0141-01" ] }, { "cite": "237 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564139 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0348-01" ] }, { "cite": "226 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "338" } ], "opinion_index": 0 }, { "cite": "290 N.C. 450", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561684 ], "year": 1976, "pin_cites": [ { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0450-01" ] }, { "cite": "74 L. Ed. 2d 42", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "459 U.S. 803", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6205152, 6203560, 6205353, 6203755, 6204907, 6204501, 6204086, 6204703 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/0803-07", "/us/459/0803-01", "/us/459/0803-08", "/us/459/0803-02", "/us/459/0803-06", "/us/459/0803-04", "/us/459/0803-03", "/us/459/0803-05" ] }, { "cite": "291 S.E.2d 151", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568704, 8568618, 8568570, 8568763, 8568670 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0302-04", "/nc/305/0302-02", "/nc/305/0302-01", "/nc/305/0302-05", "/nc/305/0302-03" ] }, { "cite": "284 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "546" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526607 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "8-9" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0001-01" ] } ], "analysis": { "cardinality": 703, "char_count": 15439, "ocr_confidence": 0.749, "pagerank": { "raw": 2.7600261116427916e-07, "percentile": 0.8334885547381334 }, "sha256": "da204e90e5e67345368e84eacd09ee633cb513f3429984f8de00401039726ab4", "simhash": "1:c13f8420d83c0ea8", "word_count": 2417 }, "last_updated": "2023-07-14T20:46:54.224272+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and JOHN concur." ], "parties": [ "THE DURHAM HERALD CO., INC., CHAPEL HILL PUBLISHING, INC., THE NEWS AND OBSERVER PUBLISHING CO., THE CHATHAM NEWS PUBLISHING COMPANY, and THE NORTH CAROLINA PRESS ASSOCIATION, INC., Plaintiffs v. THE NORTH CAROLINA LOW-LEVEL RADIOACTIVE WASTE MANAGEMENT AUTHORITY, Defendant" ], "opinions": [ { "text": "EAGLES, Judge.\nI\nThis case presents a question of first impression here \u2014 whether records made by contractors and subcontractors (contractors) of the Authority, kept by the contractors and not actually received by the Authority are public records, as defined under G.S. 132-1, requiring disclosure under North Carolina\u2019s public records law.\nG.S. 132-1 provides:\n\u201cPublic record\u201d or \u201cpublic records\u201d shall mean all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions. Agency of North Carolina government or its subdivisions shall mean and include every public office, public officer or official (State or local, elected or appointed), institution, board, commission, bureau, council department, authority or other unit of government of the State or any county, unit, special district or other political subdivision of government.\nUnder this statute, in determining access issues two questions must be answered: first, whether a contractor is an \u201c[ajgency of North Carolina government or its subdivisions\u201d; and second, if a contractor is found to be an agency, whether its records are \u201cpublic records\u201d that were \u201cmade or received pursuant to law or ordinance in connection with the transaction of public business. . . .\u201d News & Observer Publishing Co. v. Wake County Hosp. Sys., 55 N.C. App. 1, 284 S.E.2d 542 (1981), disc. rev. denied, 305 N.C. 302, 291 S.E.2d 151, cert. denied, 459 U.S. 803, 74 L. Ed. 2d 42 (1982). The trial court found that the contractors are not agencies as defined by G.S. 132-1, and there has been no appeal from that finding. That finding is the subject of a cross-assignment of error by appellees but the cross-assignment is not effective to attack the judgment itself. Cross-assignments have limited utility; they can be effective to provide additional bases or alternative grounds to support a judgment or portion of a judgment which successfully has been attacked by appellant. There is no dispute that the Authority itself is a State agency. We now address the issue of when papers and items produced and held by consultants acting pursuant to contracts with the Authority become subject to disclosure pursuant to the Public Records Act.\n\u201cIt is established \u2018[ujnder the rules of statutory construction, statutes in pari materia must be read in context with each other.\u2019 Cedar Creek Enterprises, Inc. v. Department of Motor Vehicles, 290 N.C. 450, 454, 226 S.E.2d 336, 338 (1976). Accord, Newlin v. Gill, 293 N.C. 348, 237 S.E.2d 819 (1977). \u2018In pari materia\u2019 is defined as \u2018[u]pon the same matter or subject.\u2019 Black\u2019s Law Dictionary 898 (4th ed. 1968).\u201d News & Observer, 55 N.C. App. at 8-9, 284 S.E.2d at 546. Furthermore, \u201c \u2018[w]hen the language of a statute is clear and unambiguous, there is no room for judicial construction, and the courts must give it its plain and definite meaning.\u2019 \u201d Correll v. Division of Social Services, 332 N.C. 141, 144, 418 S.E.2d 232, 235 (1992) (quoting Lemons v. Boy Scouts of America, Inc., 322 N.C. 271, 276, 367 S.E.2d 655, 658, reh\u2019g denied, 322 N.C. 610, 370 S.E.2d 247 (1988). Finally, \u201c[i]n the interpretation of statutes the legislative will is the controlling factor.\u201d State v. Hart, 287 N.C. 76, 80, 213 S.E.2d 291, 294 (1975).\nG.S. 132-1 and G.S. 104G-6(a)(18) both address the issue: under what circumstances do papers and items generated by the Authority\u2019s contractors become public records?\nG.S. 104G-6(a) provides in part:\n(a) To carry out the purposes of this Chapter, the Authority:\n* * *\n(18) Shall receive all field data, charts, maps, tracings, laboratory test data, soil and rock samples, and such other records as the Authority deems appropriate, collected or produced by its employees, contractors, or consultants pursuant to siting, operating, or closing of low-level radioactive waste facilities. All such data and materials shall become the property of the State and shall not be disposed of except in accordance with G.S. 132-3 except that soil and rock1 samples may be subjected to tests and reduced in volume for purposes of storage in a manner approved by the Authority. The Authority may enter into agreements with other State agencies for the purpose of storage and preservation of data and materials.\nIt is clear that under G.S. 104G-6(a)(18) the Authority must receive certain enumerated papers and items generated by its contractors, and that the Authority has discretion to receive other papers and items generated by its contractors. G.S. 104G-6(a)(18) provides that the Authority shall receive \u201call field data, charts, maps, tracings, laboratory test data, soil and rock samples . . .\u201d generated by the Authority\u2019s contractors. It also provides that the Authority shall receive \u201csuch other records as the Authority deems appropriate. . . .\u201d However, the second sentence of G.S. 104G-6(a)(18) provides, in pertinent part, that \u201c[a]ll such data and materials shall become the property of the State. . . .\u201d The phrase \u201c[a]ll such data and materials\u201d obviously includes those items that the Authority is mandated to receive and those which the Authority has exercised its discretion to receive. The phrase \u201cshall become the property of the State\u201d clearly indicates that the General Assembly intended that at some unstated time the data and materials would become State property, as distinguished from being the property of the consultant. The statute does not spell out precisely when the items \u201cshall become the property of the State\u201d and, therefore, subject to the Public Records Act\u2019s disclosure provisions. Accordingly, we hold that the General Assembly did not intend that the consultant-generated papers and items would be public records immediately upon creation or collection by the consultants or contractors. Instead, reading G.S. 104G-6(a)(18) and G.S. 132-1 together, we conclude that the General Assembly intended that the papers and items would become public records only when they are received by the Authority in the proper exercise of its discretion.\nHere, the appellees have not pled and the trial court did not find or conclude that the Authority abused its discretion by attempting to prevent public disclosure of information by delaying or declining receipt of contractor-generated papers and items from contractors. Accordingly, the trial court\u2019s order requiring the Authority to obtain records from its contractors must be vacated.\nII\nBecause of our disposition of the foregoing issue we need not address the remaining arguments raised by the appellant.\nIII\nFinally, we note that the appellees bring forward four \u201ccross-assignments of error.\u201d Each cross-assignment states that certain portions of the trial court\u2019s judgment were erroneous. They do not present an alternative basis for the trial court\u2019s decision. \u201cThe proper means by which to raise such an attack is an independent appeal.\u201d Whedon v. Whedon, 68 N.C. App. 191, 196, 314 S.E.2d 794, 797 (1984), reversed on other grounds, 313 N.C. 200, 328 S.E.2d 437 (1985). The appellees have failed to cross-appeal. Accordingly, to the extent appellees\u2019 cross-assignments have not already been addressed they are overruled.\nVacated.\nJudges MARTIN and JOHN concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Everett, Gaskins, Hancock & Stevens, by Hugh Stevens and Katherine R. White, for the plaintiff-appellees.", "Attorney General Lacy H. Thornburg, by Chief Deputy Attorney General Andrew A. Vanore, Jr., Special Deputy Attorney General Terry Richard Kane and Assistant Attorney General K.D. Sturgis, for the defendant-appellant.'" ], "corrections": "", "head_matter": "THE DURHAM HERALD CO., INC., CHAPEL HILL PUBLISHING, INC., THE NEWS AND OBSERVER PUBLISHING CO., THE CHATHAM NEWS PUBLISHING COMPANY, and THE NORTH CAROLINA PRESS ASSOCIATION, INC., Plaintiffs v. THE NORTH CAROLINA LOW-LEVEL RADIOACTIVE WASTE MANAGEMENT AUTHORITY, Defendant\nNo. 9210SC542\n(Filed 15 June 1993)\n1. State \u00a7 1.2 (NCI3d)\u2014 Low-Level Radioactive Waste Management Authority \u2014papers and items generated by contractors \u2014 when become public records\nThe legislature did not intend for papers and items generated by the Low-Level Radioactive Waste Management Authority\u2019s contractors and consultants to become public records upon creation or collection by the contractors or consultants. Instead, when N.C.G.S. \u00a7 104G-6(a)(18) and \u00a7 132-1 are read together, it is clear that the legislature intended that such papers and items would become public records only when they are received by the Authority in the proper exercise of its discretion.\nAm Jur 2d, Records and Recording Laws \u00a7\u00a7 1-4.\n2. Appeal and Error \u00a7 342 (NCI4th)\u2014 ineffectual cross-assignments of error\nPlaintiff appellees\u2019 purported cross-assignments of error were ineffectual where they did not present an alternative basis to support the trial court\u2019s decision but merely stated that certain portions of the trial court\u2019s judgment were erroneous.\nAm Jur 2d, Appeal and Error \u00a7 653.\nAppeal by defendant from judgment filed 6 March 1992 by Judge Gregory A. Weeks in Wake County Superior Court. Heard in the Court of Appeals 28 April 1993.\nOn 28 June 1991 plaintiffs filed a complaint against the defendants, North Carolina Low-Level Radioactive Waste Management Authority (Authority) and John H. Mac Millan, Executive Director of the Authority, seeking disclosure of certain documents alleged to be public records. Specifically, plaintiffs asked inter alia \u201cthat this action be treated as a petition for extraordinary injunctive relief pursuant to N.C. Gen. Stat. \u00a7 132-9\u201d and \u201c[f]or an order declaring that all records made or received on behalf of the Authority are public records as defined by N.C. Gen. Stat. \u00a7 132-1[.]\u201d The same day, plaintiffs filed a motion to show cause in which they asked the court to order defendant to \u201cshow cause, if any, why the documents that are the subject matter of this action should not be ordered disclosed to the public pursuant to G.S. 132-9.\u201d\nOn 16 August 1991 defendants filed an amended answer in which they admitted that the plaintiffs requested to be able to review and copy \u201crecords made or received by many of the Authority\u2019s approximately forty private contractors and subcontractors^]\u201d Defendants also admitted that the Authority\u2019s records are public records as defined by G.S. 132-1, \u201csubject to the exceptions and limitations generally applicable to Chapter 132 of the General Statutes, having been \u2018made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of the North Carolina government or its subdivisions.\u2019 \u201d However, defendants denied that \u201crecords that are and have been exclusively in the hands of private-sector contractors and subcontractors are public records within the meaning of Chapter 132 of the General Statutes.\u201d On 20 August 1991 Mr. Mac Millan was dismissed from the suit by order of the Superior Court.\nThe case was heard at the 10 February 1992 civil term of Superior Court in Wake County before Judge Gregory Weeks. On 6 March 1992 Judge Weeks filed a judgment making the following findings of fact and conclusions of law:\n(1) The Court adopts the parties\u2019 stipulated facts and incorporates them herein;\n(2) Plaintiffs do not seek records in the following categories:\na. personnel records relating to employees or prospective employees of private contractors, except to the extent that such records have been disclosed to the Authority in connection with a bid, proposal, or similar document;\nb. personnel records of public employees, except to the extent that such records are public records pursuant to North Carolina law;\nc. records protected by the attorney-client privilege and/or the attorney work-product doctrine;\nd. records used or created in connection with the formulation or preparation of any bid, proposal or similar document;\ne. trade secrets as defined by N.C.G.S. \u00a7 66-152;\n(3) The Public Records law, G.S. \u00a7\u00a7 132-1 et seq., applies to the records of \u201cany agency of North Carolina government or its subdivisions.\u201d G.S. \u00a7 132-1 defines \u201cAgency of North Carolina government or its subdivisions\u201d as \u201cevery public office, public officer or official (State or local, elected or. appointed), institution, board, commission, bureau, council, department, authority or other unit of government of the State or of any county, unit, special district or other political subdivision of government;\u201d\n(4) The private businesses hired by the Authority are not government agencies within the meaning of G.S. \u00a7 132-1, and this is so notwithstanding that these businesses may be reimbursed or compensated with funds appropriated by the General Assembly and disbursed by the Authority;\n(5) G.S. \u00a7 104G-6(a)(18) establishes that the Authority \u201cshall receive all field data, charts, maps, tracings, laboratory test data, [and] soil and rock samples\u201d that are \u201ccollected or produced by [the Authority\u2019s] employees, contractors or consultants pursuant to siting, operating or closing of low-level radioactive waste facilities;\u201d\n(6) \u201cPursuant to G.S. 104G-6(a)(18), all records containing or constituting field data, charts, maps, tracings, laboratory test data, or soil and rock samples relating to the siting, operation or closing of low-level radioactive waste facilities are public records, and are therefore subject to public inspection and copying, when they are made or received by the Authority or by its employees, contractors or consultants.\u201d\n(7) G.S. 104G-(a)(18) also authorizes the Authority to receive \u201csuch other records as the Authority deems appropriate.\u201d The Authority \u201creceives\u201d such \u201cother records\u201d only when the records, or copies of the records, are submitted to the Authority.\n(8) At such time as the Authority, in the exercise of its statutory discretion, actually receives these \u201cother\u201d records at its administrative offices, they, too, become public records; and\n(9) The court does not have before it particular records to determine whether they are public records. Therefore, disputes that may arise as to whether specific records must be made available for public inspection pursuant to this judgment will need to be resolved in accord with applicable law and any remedies available at law under this judgment.\nWherefore, it is ordered, adjudged and decreed that:\n1. The Authority shall make available for public inspection and copying all records containing or constituting field data, charts, maps, tracings, laboratory test data, or soil and rock samples collected or produced by the Authority\u2019s employees, contractors or consultants pursuant to siting, operating or closing of low-level radioactive waste facilities;\n2. The Authority shall make available for public inspection and copying all other records received by it in the exercise of the discretion conferred upon it by G.S. 104G-6(a)(18);\n3. All requests to inspect and copy records pursuant to this judgment shall be directed to the Authority. If some or all of the records requested are encompassed by paragraph 1 but have not been received by the Authority, the Authority shall promptly obtain the records, or copies of them, and make them available for public inspection and copying.\n4. All parties\u2019 shall bear their own costs.\nDefendant Authority appeals.\nEverett, Gaskins, Hancock & Stevens, by Hugh Stevens and Katherine R. White, for the plaintiff-appellees.\nAttorney General Lacy H. Thornburg, by Chief Deputy Attorney General Andrew A. Vanore, Jr., Special Deputy Attorney General Terry Richard Kane and Assistant Attorney General K.D. Sturgis, for the defendant-appellant.'" }, "file_name": "0607-01", "first_page_order": 637, "last_page_order": 644 }