{ "id": 8186550, "name": "THE NEWS REPORTER CO., INC., d/b/a THE NEWS REPORTER and ATLANTIC CORPORATION, d/b/a THE TABOR-LORIS TRIBUNE, Plaintiffs v. COLUMBUS COUNTY and JAMES VARNER, in his official capacity as Columbus County Manager, Defendants", "name_abbreviation": "News Reporter Co. v. Columbus County", "decision_date": "2007-07-03", "docket_number": "No. COA06-616", "first_page": "512", "last_page": "518", "citations": [ { "type": "official", "cite": "184 N.C. App. 512" } ], "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": "639 S.E.2d 96", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637639 ], "year": 2007, "pin_cites": [ { "page": "105", "parenthetical": "holding that town could not place public records with independent contractor in order to escape public records disclosure requirements" } ], "opinion_index": 0, "case_paths": [ "/se2d/639/0096-01" ] }, { "cite": "626 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635163, 12635164, 12635165 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/626/0299-01", "/se2d/626/0299-02", "/se2d/626/0299-03" ] }, { "cite": "616 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633597 ], "weight": 6, "year": 2005, "pin_cites": [ { "page": "604" }, { "page": "605" }, { "page": "607", "parenthetical": "\"Contrary to plaintiff's argument in this case, the documents it requested from defendant were 'gathered' by defendant if the documents were amassed or assembled in an employee's personnel file.\"" }, { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0602-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-22", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1987, "pin_cites": [ { "page": "476" } ], "opinion_index": 0 }, { "cite": "181 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8371711 ], "year": 2007, "pin_cites": [ { "page": "13-14", "parenthetical": "holding that town could not place public records with independent contractor in order to escape public records disclosure requirements" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0001-01" ] }, { "cite": "417 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "466" }, { "page": "467", "parenthetical": "rejecting contention that county employee's application for employment was not included in personnel file because applications were sent to the county rather than \"gathered\" by the county" } ], "opinion_index": 0 }, { "cite": "331 N.C. 735", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499752 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "736" }, { "page": "737-38" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0735-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 132-6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2005, "pin_cites": [ { "page": "(a)" }, { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "412 S.E.2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1992, "pin_cites": [ { "page": "19" }, { "page": "14", "parenthetical": "\"Under the plain meaning of the statutory language, any information satisfying the definition of 'personnel file' is excepted from the Public Records Law.\" (emphasis added)" }, { "page": "14" }, { "page": "14" } ], "opinion_index": 0 }, { "cite": "330 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508375 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "486" }, { "page": "476" }, { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0465-01" ] }, { "cite": "515 S.E.2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "685", "parenthetical": "\"The term 'public records,' as used in N.C.G.S. \u00a7 132-1, includes all documents and papers made or received by any agency of North Carolina government in the course of conducting its public proceedings.\"" }, { "page": "686" } ], "opinion_index": 0 }, { "cite": "350 N.C. 449", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132176 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "462", "parenthetical": "\"The term 'public records,' as used in N.C.G.S. \u00a7 132-1, includes all documents and papers made or received by any agency of North Carolina government in the course of conducting its public proceedings.\"" }, { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0449-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 132", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "360 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3792097, 3786019, 3792516, 3794027, 3794896, 3794548, 3789335, 3794396 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/360/0176-04", "/nc/360/0176-01", "/nc/360/0176-02", "/nc/360/0176-06", "/nc/360/0176-03", "/nc/360/0176-05", "/nc/360/0176-08", "/nc/360/0176-07" ] }, { "cite": "172 N.C. App. 486", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8320531 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "488" }, { "page": "492-93" }, { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0486-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 132-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2005, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 } ], "analysis": { "cardinality": 698, "char_count": 16455, "ocr_confidence": 0.748, "pagerank": { "raw": 5.013463911188975e-08, "percentile": 0.31601726587148515 }, "sha256": "4c433e1e0792d0e9c960ef543992689eb4207f9955fad7b99a86c85243804e72", "simhash": "1:5b79c94714df2c91", "word_count": 2589 }, "last_updated": "2023-07-14T19:54:59.559545+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEVINSON and JACKSON concur." ], "parties": [ "THE NEWS REPORTER CO., INC., d/b/a THE NEWS REPORTER and ATLANTIC CORPORATION, d/b/a THE TABOR-LORIS TRIBUNE, Plaintiffs v. COLUMBUS COUNTY and JAMES VARNER, in his official capacity as Columbus County Manager, Defendants" ], "opinions": [ { "text": "GEER, Judge.\nThis appeal arises from the refusal of defendant Columbus County and its County Manager, defendant James Varner, to make available to plaintiff newspapers, under the Public Records Act, N.C. Gen. Stat. \u00a7\u00a7 132-1 et seq. (2005), a letter prepared by a county employee and sent to the Columbus County Board of Commissioners regarding the Columbus County medical director contract. Based upon our review of the letter, we hold that the trial court erred in concluding that the entire letter was protected from disclosure under exceptions to the Public Records Act as applicable to counties. While portions of the letter are protected from disclosure, those portions can be redacted, and the remainder \u2014 falling within the Public Records Act \u2014 provided to plaintiffs.\nFacts\nIn 2004, Ronald Hayes was employed as the Director of Emergency Services for Columbus County and reported directly to Varner. Hayes was required, in his job, to work with Dr. Fred Obrecht, who had a contract with the County to serve as the County\u2019s medical director. That contract expired on 1 July 2004, and, in 2005, the Columbus County Board of Commissioners (\u201cthe Board\u201d) was considering whether to renew the contract. In September 2005, Hayes wrote a letter to the Board and its personnel committee, discussing in part his experience working with Dr. Obrecht. The letter also recommended Dr. Peggy Barnhill for the position of medical director. On 19 September 2005, the Board announced that it was extending Dr. Obrecht\u2019s contract.\nPlaintiffs\u2019 request for a copy of Hayes\u2019 letter was denied by defendants. On 21 October 2005, plaintiffs filed suit against the County and Varner, seeking a declaratory judgment that the letter was a public record as defined by N.C. Gen. Stat. \u00a7 132-1 (2005) and an order compelling defendants to allow plaintiffs to view and copy the letter. Defendants filed an answer denying that the letter was a public record and, on 30 January 2006, moved for summary judgment.\nOn 20 February 2006, the trial court entered summary judgment in favor of defendants in a summary decision, concluding only \u201cthat there is no genuine issue of material fact and Defendants are entitled to judgment as a matter of law.\u201d Plaintiffs timely appealed from this order.\nDiscussion\nThe parties do not, on appeal, point to any issues of material fact for trial. Indeed, the pertinent facts are undisputed. The questions before this Court are: (1) is the letter sent by Hayes to the Board a \u201cpublic record\u201d within the meaning of the Public Records Act, N.C. Gen. Stat. \u00a7 132-1, and (2) if so, is the letter exempted from disclosure as a personnel record under N.C. Gen. Stat. \u00a7 153A-98 (2005)? These questions present issues of law regarding the interpretation of \u00a7\u00a7 132-1 and 153A-98 as applied to the undisputed facts. This case is, therefore, \u201ca proper case for summary judgment.\u201d Knight Publ\u2019g Co. v. Charlotte-Mecklenburg Hosp. Auth., 172 N.C. App. 486, 488, 616 S.E.2d 602, 604, disc. review denied, 360 N.C. 176, 626 S.E.2d 299 (2005).\n\u201cUnder the Public Records Act, the public generally has liberal access to public records.\u201d Id. at 489, 616 S.E.2d at 605. The parties, however, first dispute whether Hayes\u2019 letter constitutes a \u201cpublic record\u201d under that Act. N.C. Gen. Stat. \u00a7 132-1 defines \u201cpublic record\u201d as meaning:\nall 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 of any county, unit, special district or other political subdivision of government.\nN.C. Gen. Stat. \u00a7 132-l(a) (emphases added).\nIt is undisputed that Hayes\u2019 letter was written by a county employee, who was required to work with the medical director, and was received by the Board in connection with its decision regarding whom to hire as medical director, an independent contractor of the County. We hold that, under these circumstances, the Hayes letter constituted a public record. See Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 462, 515 S.E.2d 675, 685 (1999) (\u201cThe term \u2018public records,\u2019 as used in N.C.G.S. \u00a7 132-1, includes all documents and papers made or received by any agency of North Carolina government in the course of conducting its public proceedings.\u201d).\nOur Supreme Court has held that \u201cin the absence of clear statutory exemption or exception, documents falling within the definition of \u2018public records\u2019 in the Public Records Law must be made available for public inspection.\u201d News & Observer Publ\u2019g Co. v. Poole, 330 N.C. 465, 486, 412 S.E.2d 7, 19 (1992). N.C. Gen. Stat. \u00a7 132-6(a) (2005) specifically provides: \u201cEvery custodian of public records shall permit any record in the custodian\u2019s custody to be inspected and examined at reasonable times and under reasonable supervision by any person, and shall, as promptly as possible, furnish copies thereof upon payment of any fees as may be prescribed by law.\u201d\nDefendants, however, contend that the Hayes letter falls within the statutory exemption provided by N.C. Gen. Stat. \u00a7 153A-98, which provides in pertinent part:\n(a) Notwithstanding the provisions of G.S. 132-6 or any other general law or local act concerning access to public records, personnel files of employees ... maintained by a county are subject to inspection and may be disclosed only as provided by this section. For purposes of this section, an employee\u2019s personnel file consists of any information in any form gathered by the county with respect to that employee and, by way of illustration but not limitation, relating to his application, selection or nonselection, performance, promotions, demotions, transfers, suspension and other disciplinary actions, evaluation forms, leave, salary, and termination of employment. . . .\n(c) All information contained in a county employee\u2019s personnel file, other than the information made public by subsection (b) of this section, is confidential and shall be open to inspection only in the following instances ....\n(Emphasis added.) Our Supreme Court has held that if a document falls within the scope of N.C. Gen. Stat. \u00a7 153A-98(a), then it is \u201cnot governed by N.C.G.S. \u00a7 132-6 of the Public Records Act because N.C.G.S. \u00a7 153A-98 provides such inspection and disclosure may only be done as provided by that section.\u201d Elkin Tribune, Inc. v. Yadkin County Bd. of County Comm\u2019rs, 331 N.C. 735, 736, 417 S.E.2d 465, 466 (1992).\nHayes\u2019 letter addresses in part his experiences working with Dr. Obrecht, as well as providing information about another possible candidate for medical director. Because Dr. Obrecht was an independent contractor, defendants appropriately do not argue that the letter is entitled to protection under \u00a7 153A-98 as a personnel record of Dr. Obrecht. Instead, defendants contend that the letter constitutes a \u201cpersonnel record\u201d because it relates to Hayes\u2019 performance as a county employee and it was placed in his personnel file.\nInitially, plaintiffs argue that \u00a7 153A-98 does not apply because Hayes\u2019 letter was not \u201cgathered\u201d by the Board, but rather was voluntarily sent by Hayes to the Board. This argument has previously been rejected by both the Supreme Court and' this Court. See Elkin Tribune, 331 N.C. at 737-38, 417 S.E.2d at 467 (rejecting contention that county employee\u2019s application for employment was not included in personnel file because applications were sent to the county rather than \u201cgathered\u201d by the county); Knight Publ\u2019g, 172 N.C. App. at 492-93, 616 S.E.2d at 607 (\u201cContrary to plaintiff\u2019s argument in this case, the documents it requested from defendant were \u2018gathered\u2019 by defendant if the documents were amassed or assembled in an employee\u2019s personnel file.\u201d).\nOn the other hand, we disagree with defendants\u2019 suggestion that the fact defendant Varner chose to place the letter in Hayes\u2019 personnel file has any bearing on whether that letter falls within the scope of \u00a7 153A-98. Whether a document is part of a \u201cpersonnel file,\u201d within the meaning of \u00a7 153A-98(a), depends upon the nature of the document and not upon where the document has been filed. See Poole 330 N.C. at 476, 412 S.E.2d at 14 (\u201cUnder the plain meaning of the statutory language, any information satisfying the definition of \u2018personnel file\u2019 is excepted from the Public Records Law.\u201d (emphasis added)). As plaintiff points out, a contrary holding would transform a newspaper clipping discussing an employee\u2019s performance into a confidential record if that clipping happened to be filed in the employee\u2019s official personnel file.\nFurther, defendants\u2019 contention would allow governmental officials to avoid disclosure of a document under the Public Records Act simply by placing a document in an employee\u2019s file. Our Supreme Court has held that \u201c[a] custodian of such \u2018public records\u2019 has no discretion to prevent public inspection and copying of such records.\u201d Virmani, 350 N.C. at 465, 515 S.E.2d at 686. Focusing on where the document is stored would, however, grant the custodian precisely the discretion precluded by the Public Records Act. Indeed, this Court has previously held that the Public Records Act may not be interpreted in a way that allows \u201cmunicipalities and other governmental agencies [to] skirt[] the public records disclosure requirements\u201d by lodging public records \u201cthat municipalities and agencies [choose] to shield from public scrutiny\u201d in a particular location not generally subject to disclosure. Womack Newspapers, Inc. v. Town of Kitty Hawk, 181 N.C. App. 1, 13-14, 639 S.E.2d 96, 105 (2007) (holding that town could not place public records with independent contractor in order to escape public records disclosure requirements).\nAfter examining the letter at issue, we believe that the portions discussing Hayes\u2019 interactions with Dr. Obrecht constitute \u201cany information in any form gathered by the county with respect to that employee ... relating to his ... performance ...N.C. Gen. Stat. \u00a7 153A-98(a). The letter does not comment on Dr. Obrecht\u2019s qualifications, skill, or reputation as a physician or on whether Dr. Obrecht\u2019s medical skills and training were a good match for the County\u2019s needs, but rather discusses Hayes\u2019 ability to work with Dr. Obrecht. We believe that the letter, to the extent it discusses Dr. Obrecht, also relates to Hayes\u2019 performance as a county employee.\nPlaintiffs, however, point to Poole, 330 N.C. at 476, 412 S.E.2d at 14, as requiring that the letter \u201crelate to at least one of the enumerated activities by the employer with respect to the individual employee.\u201d (Emphasis supplied by plaintiffs.) The Supreme Court in Poole was, however, construing a different statute: N.C. Gen. Stat. \u00a7 126-22 (1987). That statute provided that the information constituting a personnel file must \u201crelate [] to the individual\u2019s application, selection or nonselection, promotions, demotions, transfers, leave, salary, suspension, performance evaluation forms, disciplinary actions, and termination of employment\u201d (emphasis added)\u2014 all areas involving action by the employer, as the Supreme Court held. See id. at 476, 412 S.E.2d at 14. In contrast, N.C. Gen. Stat. \u00a7 153A-98(a) specifically references \u201cperformance\u201d generally and, in any event, contains a list that is \u201cmerely illustrative,\u201d Knight Publ\u2019g, 172 N.C. App. at 495, 616 S.E.2d at 608, as indicated by the qualification that the list is \u201cby way of illustration but not limitation,\u201d N.C. Gen. Stat. \u00a7 153A-98(a). We, therefore, hold that the portions of the letter addressing Hayes\u2019 experience with Dr. Orbecht fall within \u00a7 153A-98(a).\nThe Hayes letter is not, however, limited to discussing Dr. Orbecht, but also addresses Hayes\u2019 recommendation of Dr. Peggy Barnhill for the position of county medical director. In addition, it contains a paragraph describing Hayes\u2019 interactions with the Board regarding its process in making decisions relating to the medical director contract. This paragraph explains how Hayes came to write the letter.\nN.C. Gen. Stat. \u00a7 153A-98(a) does not protect all information \u201cwith respect to\u201d an employee. Instead, it requires both (1) that the information be \u201cwith respect to\u201d the employee, and (2) that it \u201crelat[e] to\u201d a list of subjects arising out his employment, although that list is \u201cby way of illustration but not limitation.\u201d Id. Thus, although the precise test articulated in Poole does not apply, \u00a7 153A-98(a) still requires, at least, that the information relate to the employee\u2019s employment with the governmental body.\nWe can perceive no basis for considering the Barnhill portion of the letter or the description of the Board\u2019s conduct to be \u201cany information\u201d gathered by the County \u201cwith respect to\u201d the types of matters governed by \u00a7 153A-98(a) regarding Hayes\u2019 employment with the County. Id. Thus, a portion of the letter is covered by \u00a7 153A-98(a), but a portion of the letter is not. N.C. Gen. Stat. \u00a7 132-6(c) specifies that \u201c[n]o request to inspect, examine, or obtain copies of public records shall be denied on the grounds that confidential information is commingled with the requested nonconfidential information.\u201d The statute specifically provides that a governmental body may be required \u201cto separate confidential from nonconfidential information in order to permit the inspection . . . .\u201d Id.\nAccordingly, defendants may redact those portions of the Hayes letter protected from disclosure by \u00a7 153A-98, but must produce the remaining portions. Based upon our review of the letter, defendants are directed to redact the last sentence of the first paragraph of the letter (beginning \u201cHowever ....\u201d) and the entirety of the letter\u2019s second paragraph (beginning \u201cWe have . . . .\u201d), third paragraph (beginning \u201cThere have . . . .\u201d), and sixth paragraph (beginning \u201cI feel . . . .\u201d). The first sentence of the fourth paragraph (beginning \u201cAs you gentlemen are aware . . . .\u201d) must also be redacted. The remainder of the first paragraph, together with the remainder of the fourth paragraph (beginning \u201cAs you are also aware ....\u201d) and the fifth paragraph (beginning \u201cAt this time ....\u201d) must be provided to plaintiffs.\nAffirmed in part and reversed in part.\nJudges LEVINSON and JACKSON concur.\n. We are not required by this appeal to examine the precise scope of this second requirement of \u00a7 153A-98(a).", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Everett Gaskins Hancock & Stevens, LLP, by Hugh Stevens and C. Amanda Martin, for plaintiffs-appellants.", "Womble Carlyle Sandridge & Rice, PLLC, by Mark A. Davis and James R. Morgan, Jr.; and Columbus County Attorney\u2019s Office, by Steve Fowler, for defendants-appellees." ], "corrections": "", "head_matter": "THE NEWS REPORTER CO., INC., d/b/a THE NEWS REPORTER and ATLANTIC CORPORATION, d/b/a THE TABOR-LORIS TRIBUNE, Plaintiffs v. COLUMBUS COUNTY and JAMES VARNER, in his official capacity as Columbus County Manager, Defendants\nNo. COA06-616\n(Filed 3 July 2007)\nPublic Records\u2014 letter from county employee \u2014 county medical director contract \u2014 personnel file exemption\u2014 redaction\nA letter written by a county employee, who was required to work\u2019 with the county medical director, an independent contractor, and sent to the board of commissioners in connection with its decision regarding the county medical director contract was a public record under the Public Records Act. However, portions of the letter discussing the county employee\u2019s experiences in working with the current medical director constitute personnel file information gathered by the county with respect to the letter writer and are exempt from disclosure pursuant to N.C.G.S. \u00a7 153A-98(a) so that those portions must be redacted before the letter is disclosed to plaintiff newspapers. Portions of the letter regarding a recommendation for medical, director and describing the employee\u2019s interaction with the board were not exempt from disclosure under the Public Records Act.\nAppeal by plaintiffs from order entered 20 February 2006 by Judge Gary L. Locklear in Columbus County Superior Court. Heard in the Court of Appeals 16 November 2006.\nEverett Gaskins Hancock & Stevens, LLP, by Hugh Stevens and C. Amanda Martin, for plaintiffs-appellants.\nWomble Carlyle Sandridge & Rice, PLLC, by Mark A. Davis and James R. Morgan, Jr.; and Columbus County Attorney\u2019s Office, by Steve Fowler, for defendants-appellees." }, "file_name": "0512-01", "first_page_order": 544, "last_page_order": 550 }