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  "name": "WALLACE FARM, INC., Plaintiff v. CITY OF CHARLOTTE and CURT WALTON, Defendants",
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    "judges": [
      "Judges JACKSON and HUNTEE, Jr., Eobert N. concur."
    ],
    "parties": [
      "WALLACE FARM, INC., Plaintiff v. CITY OF CHARLOTTE and CURT WALTON, Defendants"
    ],
    "opinions": [
      {
        "text": "BRYANT, Judge.\nPlaintiff Wallace Farm, Inc., appeals from a memorandum and order entered after the Mecklenburg Superior Court conducted an in camera review of public records provided by the City of Charlotte and ordered that 225 documents were trial preparation materials and not subject to inspection by plaintiff. For the reasons stated herein, we affirm. .\nOn 30 September 2008, Charlotte zoning inspectors, by authority of an administrative warrant, searched Wallace Farm following complaints of odor emanating from the farm\u2019s composting facility and allegations that Wallace Farm had grown beyond the parameters set by the 1999 zoning regulations.\nOn 15 October 2008, plaintiff mailed to the Office of the Charlotte City Manager a request to examine all public records from the last ten years \u2014 1998 through 2008 \u2014 that referred to plaintiff\u2019s property, including but not limited to complaints against and subsequent investigation of plaintiff\u2019s composting facility, meetings between city, state, and federal personnel regarding neighborhood development, and zoning code enforcement. Lacking a response, plaintiff sent a follow-up request to review the documents on 27 October. On 31 October, the Charlotte City Attorney\u2019s Office sent notice to plaintiff that City Manager Curt Walton relayed the public records request to the City Attorney\u2019s Office and the City Attorney\u2019s Office would comply with the request pursuant to the obligations of N.C. Gen. Stat. \u00a7 132-1 et seq. On 3 November 2008, plaintiff filed a complaint against the City of Charlotte and City Manager Curt Walton (defendants) to compel production of the requested public records. A hearing was set for 18 December 2008.\nDefendants provided plaintiff with 8,241 pages of public documents on 24 November 2008; 10,183 pages of documents on 4 Decernber 2008; and on 11 December 2008, approximately 3,000 pages for a total of 21,424 pages. However, defendants withheld approximately 500 pages on grounds that the City reasonably anticipated litigation and the materials \u201cwithheld from review contain mental impressions, conclusions, opinions, or legal theories of individuals in the City Attorney\u2019s Office concerning the potential litigation . ...\u201d On 6 January 2009, after reviewing the withheld pages in camera in order to decide whether they should be provided to plaintiff, the trial court entered a memorandum and order in which it ruled that the 500 pages comprising 225 documents were trial preparation materials and therefore not public records subject to inspection by plaintiff. Plaintiff appeals.\nOn appeal, plaintiff argues that the trial court erred by failing to allow plaintiff to inspect the public records because the records were not trial preparation materials and failing to allow the inspection operated in opposition to the North Carolina Public Records Act. We disagree.\nWe review the trial court\u2019s ruling for abuse of discretion. See Maxwell v. Michael P. Doyle, Inc., 164 N.C. App. 319, 329, 595 S.E.2d 759, 765 (2004) (\u201cA trial court\u2019s determination regarding relevance for purposes of discovery may be reversed only upon a showing of an abuse of discretion.\u201d).\nOur Public Records Act, codified in Chapter 132 of our General Statutes \u201cprovides for liberal access to public records.\u201d Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 462, 515 S.E.2d 675, 685 (1999) (citation omitted). \u201cThe public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people. Therefore, it is the policy of this State that the people may obtain copies of their public records . . . unless otherwise specifically provided by law.\u201d N.C. Gen. Stat. \u00a7 132-l(b) (2007). \u201cExceptions and exemptions to the Public Records Act must be construed narrowly.\u201d Carter-Hubbard Publ\u2019g Co. v. WRMC Hosp. Operating Corp., 178 N.C. App. 621, 624, 633 S.E.2d 682, 684 (2006) (citation omitted). Under our General Statutes, section 132-1.9, \u201ca custodian may deny access to a public record that is also trial preparation material.\u201d N.C. Gen. Stat. \u00a7 132-1.9(b) (2007).\nUnder our Rules of Civil Procedure \u201c[a] court may not permit disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation in which the material is sought or work product of the attorney or attorneys of record in the particular action.\u201d N.C. R. Civ. P. 26(b)(3) (2007).\n[T]he party asserting work product privilege bears the burden of showing (1) that the material consists of documents or tangible things, (2) which were prepared in anticipation of litigation or for trial, and (3) by or for another party or its representatives which may include an attorney, consultant, surety, indemnitor, insurer or agent.\nEvans v. United Servs. Auto. Ass\u2019n, 142 N.C. App. 18, 29, 541 S.E.2d 782, 789 (2001) (citations and internal quotations omitted).\nAlthough not a privilege, the exception is a qualified immunity and extends to all materials prepared in anticipation of litigation or for trial by or for another party or by or for that other party\u2019s consultant, surety, indemnitor, insurer, or agent. The protection is allowed not only for materials prepared after the other party has secured an attorney, but those prepared under circumstances in which a reasonable person might anticipate a possibility of litigation. Materials prepared in the ordinary course of business are not protected, nor does the protection extend to facts known by any party.\nBoyce & Isley, PLLC v. Cooper, - N.C. App. -, 673 S.E.2d 694, 702 (2009) (citations, quotations, and emphasis omitted).\nHere, in the 15 December 2008 letter from defendants to plaintiff, defendants contend the documents withheld \u201cwere prepared in anticipation of a legal proceeding yet to commence.\u201d Specifically, defendants \u201ccontend that if it takes any action against [Wallace Farm], be it via the City beginning enforcement proceedings for possible Zoning Ordinance violations, or the odor study results being submitted to any party, litigation is reasonably anticipated to follow.\u201d At the 18 December 2008 hearing to compel production of public records, defendants argued that the materials withheld \u201call related to the City\u2019s research and the City\u2019s taking a look at legal strategies related to possible zoning enforcement, not with respect to any of the claims that the plaintiff suggest they might pursue against the City with respect to the September 30, 2008 administrative inspection.\u201d Upon review, including in camera review of the withheld documents, we agree with the trial court\u2019s ruling and hold the challenged documents contain mental impressions, conclusions, opinions, or legal theories of city attorneys or other agents of the City in reasonable anticipation of litigation. Therefore, we hold that the trial court did not abuse its discretion in concluding the public records exception under N.C. Gen. Stat. \u00a7 132-1.9 applies. Accordingly, we overrule plaintiffs assignment of error.\nAffirmed.\nJudges JACKSON and HUNTEE, Jr., Eobert N. concur.",
        "type": "majority",
        "author": "BRYANT, Judge."
      }
    ],
    "attorneys": [
      "The Odom Firm, PLLC, by T. LaFontine Odom, Sr., Thomas L. Odom, Jr., and David W. Murray, for plaintiff-appellant.",
      "City of Charlotte, Office of the City of Attorney, by Senior Assistant City Attorney S. Mujeeb Shah-Khan, for defendantappellees."
    ],
    "corrections": "",
    "head_matter": "WALLACE FARM, INC., Plaintiff v. CITY OF CHARLOTTE and CURT WALTON, Defendants\nNo. COA09-939\n(Filed 16 March 2010)\nPublic Records\u2014 request \u2014 trial preparation materials \u2014 not subject to inspection\nThe trial court did not abuse its discretion by denying plaintiff the opportunity to inspect certain records it had requested from the City of Charlotte under the Public Records Act because the documents contained mental impressions, conclusions, opinions, or legal theories of City attorneys or other agents of the City that had been prepared in reasonable anticipation of litigation.\nAppeal by plaintiff from memorandum and order entered 6 January 2009 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 26 January 2010.\nThe Odom Firm, PLLC, by T. LaFontine Odom, Sr., Thomas L. Odom, Jr., and David W. Murray, for plaintiff-appellant.\nCity of Charlotte, Office of the City of Attorney, by Senior Assistant City Attorney S. Mujeeb Shah-Khan, for defendantappellees."
  },
  "file_name": "0144-01",
  "first_page_order": 172,
  "last_page_order": 176
}
