{
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    "judges": [
      "Judge HUNTER concurs:",
      "Judge DILLON concurs in part and dissents in part."
    ],
    "parties": [
      "DAVID B. WIND, Plaintiff v. THE CITY OF GASTONIA, NORTH CAROLINA, A Municipal Corporation, Defendant"
    ],
    "opinions": [
      {
        "text": "MARTIN, Chief Judge.\nDefendant City of Gastonia appeals from the trial court\u2019s order granting plaintiff David B. Wind\u2019s motion for summary judgment, denying defendant\u2019s cross-motion for summary judgment, and ordering that defendant disclose to plaintiff unredacted copies of all documents contained in the City of Gastonia Police Department\u2019s Internal Affairs Investigative Case Files 2008265 and 2008307. We affirm and remand for further proceedings.\nAccording to the record before us, plaintiff joined the Gastonia Police Department in March 2008 as a patrolman, after serving as a detention enforcement officer for the United States Immigration and Naturalization Service, and as an officer and detective with the Coral Springs Police Department in Florida. In the Fall of 2008, two complaints were made against plaintiff and reported to the Gastonia Police Department;- one by a citizen, and one by a police officer. The citizen\u2019s complaint, which was designated as Internal Affairs (\u201cIA\u201d) Investigative Case File 2008307, alleged that plaintiff exhibited \u201cRudeness/Force by Firearm\u201d after plaintiff disarmed the citizen and secured the citizen\u2019s firearm while plaintiff conducted an investigation. The officer\u2019s complaint, which had been designated as IA Investigative Case File 2008265, alleged that plaintiff exhibited \u201cConduct Unbecoming of an Officer\u201d and challenged plaintiff\u2019s \u201cIntegrity\u201d and \u201cTruthfulness\u201d after the complainant charged that plaintiff falsified grounds for probable cause in order to make an arrest at a traffic stop. The citizen\u2019s complaint was investigated by plaintiff\u2019s supervisor, while the officer\u2019s complaint was investigated by Gastonia Police Department\u2019s Office of Professional Standards Unit, formerly its IA Unit.\nGastonia Police Department\u2019s Chief of Police Timothy Lee Adams was provided with all of the information collected upon the conclusion of both investigations in order to \u201cadjudicate [] the case[s]\u201d and make his final decisions with respect to each complaint. With respect to the citizen\u2019s complaint, the allegations \u201cwere determined to be NOT SUSTAINED\u201d and the case was \u201cclosed.\u201d With respect to the officer\u2019s complaint, the allegations were determined to be \u201cunfounded by the Chief [of Police]\u201d and the case was designated as \u201cclosed, no further action required.\u201d\nIn February 2009, after the cases were deemed closed, plaintiff sent a written memorandum to Chief Adams requesting an opportunity to view the complete investigative files associated with the complaints, and met with Chief Adams in person shortly thereafter to request the same. Plaintiff asserts that Chief Adams refused his request to inspect the complete contents of the files. While the record indicates that Chief Adams did provide documents from these files to plaintiff \u2014 albeit two years after plaintiff\u2019s initial request \u2014 the documents provided to plaintiff were significantly redacted. Defense counsel represented to the trial court that the redactions concealed only the identity of the complainants and such information as would enable someone to identify them.\nPlaintiff filed his Complaint and First Amended Complaint against defendant City of Gastonia (\u201cGastonia\u201d) in February 2010, alleging that Gastonia violated N.C.G.S. \u00a7 160A-168, the North Carolina Constitution, and Gastonia\u2019s own \u201crules, regulations, policies and procedures\u201d by \u201crefusing to disclose [to plaintiff] the requested documents\u201d comprising IA Investigative Case Files 2008307 and 2008265. Plaintiff and Gastonia filed cross-motions for summary judgment, which were heard on 24 October 2011. On 1 November 2011, the trial court entered an order granting plaintiff\u2019s motion for summary judgment, denying Gastonia\u2019s motion for summary judgment, and retaining for trial \u201c[t]he issue of any damages from the denial of the records ...The court further ordered that plaintiff \u201cis entitled to complete copies of the documents contained in [IA] Files 2008265 and 2008307 without any redacted information,\u201d and ordered that Gastonia \u201cdisclose these documents to [plaintiff].\u201d Gastonia appealed to this Court, and the trial court entered a consent order staying \u201call further trial court level proceedings in this matter\u201d until the conclusion of this appeal.\n\u201cGenerally, there is no right of immediate appeal from interlocutory orders and judgments.\u201d Sharpe v. Worland, 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999), on remand, 137 N.C. App. 82, 527 S.E.2d 75 (2000); see also id. (\u201cInterlocutoiy orders and judgments are those made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court to settle and determine the entire controversy.\u201d (internal quotation marks omitted)). However, \u201c[notwithstanding this cardinal tenet of appellate practice, immediate appeal... is available from an interlocutory order or judgment which affects a substantial right.\u201d Sharpe, 351 N.C. at 161-62, 522 S.E.2d at 579 (citations and internal quotation marks omitted); see also N.C. Gen. Stat. \u00a7 l-277(a) (2011); N.C. Gen. Stat. \u00a7 7A-27(d)(l) (2011). \u201cIt is well settled that an interlocutory order affects a substantial right if the order deprive[s] the appealing party of a substantial right which will be lost if the order is not reviewed before a final judgment is entered.\u201d Sharpe, 351 N.C. at 162, 522 S.E.2d at 579 (alteration in original) (internal quotation marks omitted).\nHere, Gastonia concedes that the present appeal is interlocutoiy. However, Gastonia argues that such appeal is properly before this Court for immediate review because the trial court\u2019s order affects a substantial right \u201cthat would be forever lost by [Gastonia] if the matter proceeded[] by having to turn over documents which [Gastonia] claims are statutorily privileged.\u201d We recognize that \u201cif [Gastonia] is required to disclose the very documents that it alleges are protected from disclosure by the statutoiy privilege, then a right materially affecting those interests which a [person] is entitled to have preserved and protected by law\u2014 \u2014a substantial right--is affected,\u201d and \u201cthe substantial right asserted by [Gastonia] will be lost if the trial court\u2019s order is not reviewed before entry of a final judgment.\u201d See id. at 164-65, 522 S.E.2d at 580-81 (second alteration in original) (internal quotation marks omitted). Thus, because the trial court\u2019s interlocutory order compels production of files which may be privileged pursuant to N.C.G.S. \u00a7 160A-168, we conclude that the trial court\u2019s order affects a substantial right and is immediately appealable to this Court. See Hayes v. Premier Living, Inc., 181 N.C. App. 747, 751, 641 S.E.2d 316, 318 (2007). We further conclude, since the sole argument advanced by the parties regarding the grounds for immediate appellate review is Gastonia\u2019s argument that protecting the requested files from disclosure affects a substantial right pursuant to a statutory privilege arising under N.C.G.S. \u00a7 160A-168, only the issues of whether N.C.G.S. \u00a7 160A-168 requires Gastonia to disclose the requested files to plaintiff, and whether Gastonia is statutorily exempt from the requirement, if any, to disclose the same, are properly before us.\nGastonia first argues that it did not violate N.C.G.S. \u00a7 160A-168 by denying plaintiffs request to inspect the documents at issue, because the documents requested fall within a subsection of the statute, N.C.G.S. \u00a7 160A-168(cl)(4), which, according to Gastonia\u2019s argument, exempts it from any disclosure obligations arising under the other subsections of the statute. \u201cWhere the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning.\u201d Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990); see also Perkins v. Ark. Trucking Servs., Inc., 351 N.C. 634, 638, 528 S.E.2d 902, 904 (2000) (\u201cNothing else appearing, the Legislature is presumed to have used the words of a statute to convey their natural and ordinary meaning.\u201d (internal quotation marks omitted)). \u201c[HJowever, where a statute is ambiguous or unclear as to its meaning, we must interpret the statute to give effect to the legislative intent.\u201d N.C. Dep\u2019t of Revenue v. Hudson, 196 N.C. App. 765, 767, 675 S.E.2d 709, 711 (2009). Additionally, \u201c[w]ords and phrases of a statute may not be inteipreted out of context, but individual expressions must be construed as apart of the composite whole and must be accorded only that meaning which other modifying provisions and the clear intent and purpose of the act will permit.\u201d In re Hardy, 294 N.C. 90, 95-96, 240 S.E.2d 367, 371-72 (1978) (internal quotation marks omitted).\nAccording to N.C.G.S. \u00a7 160A-168(a), employee personnel files \u201cmaintained by a city are subject to inspection and may be disclosed only as provided by [N.C.G.S. \u00a7 160A-168].\u201d N.C. Gen. Stat. \u00a7 160A-168(a) (2011). \u201c[A]n employee\u2019s personnel file\u201d \u201cconsists of any information in any form gathered by the city 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.\u201d Id. In the present case, Gastonia conceded during oral arguments to this Court that the documents at issue are a part of plaintiff\u2019s employee personnel file in accordance with N.C.G.S. \u00a7 160A-168(a).\nAll information contained in a city employee\u2019s personnel file that is not deemed to be \u201ca matter of public record,\u201d which includes information such as name, age, current position and salary, and date of original employment, see N.C. Gen. Stat. \u00a7 160A-168(b), \u201cis confidential and shall be open to inspection only\u201d in certain instances. N.C. Gen. Stat. \u00a7 160A-168(c)(l). One instance in which \u201cconfidential\u201d information from a city employee\u2019s personnel file \u201cshall be open to inspection\u201d allows \u201c[t]he employee or his duly authorized agent\u201d to \u201cexamine all portions of his personnel file,\u201d id., with limited exceptions, which gives the employee an opportunity to determine whether material in his file \u201cis inaccurate or misleading.\u201d See, e.g., N.C. Gen. Stat. \u00a7 160A-168(d) (providing that the city council of a city that maintains personnel files \u201ccontaining information other than\u201d that which is a matter of public record \u201cshall establish procedures whereby an employee who objects to material in his file on grounds that it is inaccurate or misleading may seek to have the material removed from the file or may place in the file a statement relating to the material\u201d). In the present case, Gastonia does not dispute that, with limited exceptions, a city employee has a statutoiy right to inspect \u201cconfidential\u201d information in his own personnel file pursuant to N.C.G.S. \u00a7 160A-168(c)(l).\nHowever, the statute further provides that, \u201c[e]ven if considered part of an employee\u2019s personnel file, the following information need not be disclosed to an employee nor to any other person\u201d: \u201cNotes, preliminary drafts and internal communications concerning an employee. In the event such materials are used for any official personnel decision, then the employee or his duly authorized agent shall have a right to inspect such materials.\u201d N.C. Gen. Stat. \u00a7 160A-168(cl)(4). It is under this exception enumerated in subsection (d)(4) that Gastonia asserts its authority to deny plaintiff\u2019s request to inspect the documents at issue. Thus, we now consider whether Gastonia was permitted by the exemption under N.C.G.S. \u00a7 160A-168(cl)(4) to deny plaintiff the opportunity to inspect the IA investigative files at issue-files which Gastonia concedes are a part of plaintiff\u2019s employee personnel file in accordance with N.C.G.S. \u00a7 160A-168(a) \u2014 despite plaintiff\u2019s statutory right under N.C.G.S. \u00a7 160A-168(c)(l) to otherwise inspect this \u201cconfidential\u201d information.\nWe note as a preliminary matter that, because the disclosure exemption arising under subsection (d)(4) particularly applies only to those materials \u201cconcerning an employee\u201d that are described as \u201c[n]otes, preliminary drafts and internal communications,\u201d see N.C. Gen. Stat. \u00a7 160A-168(cl)(4), Gastonia can only invoke the disclosure exemption of this subsection if the IA investigative files at issue are materials that qualify for this exemption. In other words, because Gastonia asks this Court to conclude that it was statutorily authorized to exempt the complete IA investigative files at issue under subsection (d)(4), each file would have to be deemed a note, a preliminary draft, or an internal communication concerning plaintiff, as such terms are used in subsection (d)(4), in order for Gastonia\u2019s claim of an exemption from the disclosure requirements of subsection (c)(1) to succeed.\nWe look for guidance about what materials the General Assembly intended to include within the ambit of \u201c[n]otes, preliminary drafts and internal communications\u201d by examining the plain meaning of these terms. Based on the common definitions of these terms at the time this statute was promulgated, it appears the General Assembly intended to allow a disclosure exemption under subsection (d)(4) for written materials that are informal or provisional in character. See Webster\u2019s New World Dictionary 423 (2d ed. 1974) (defining \u201cdraft\u201d as \u201ca rough or preliminary sketch of a piece of writing\u201d); id. at 973 (defining \u201cnote\u201d as \u201ca brief statement of a fact, experience, etc. written down for review, as an aid to memory, or to inform someone else\u201d). In the present case, the documents comprising the IA investigative files at issue are not in the record before this Court, nor would we expect them to be in light of the substantial right asserted as the grounds for Gastonia\u2019s interlocutory appeal. Nonetheless, the materials sought for inspection by plaintiff in this case are the complete investigative files concerning complaints made against plaintiff, which investigations have been finally adjudicated and determined to be closed. Since it is Gastonia\u2019s burden as the appellant to provide argument supporting its assertion that the materials it seeks to exempt from the disclosure requirement of subsection (c)(1) fall within the ambit of material that may be exempt from disclosure under subsection (d)(4), see N.C.R. App. P. 28(b)(6), in the absence of contrary argument or evidence in the record, we cannot conclude that the IA investigative files that plaintiff seeks to inspect are each a note, a preliminary draft, or an internal communication concerning plaintiff. Nevertheless, even assuming without deciding that the IA investigative files that plaintiff seeks to inspect are materials that may be exempted from disclosure to plaintiff under subsection (d)(4), we are not persuaded by Gastonia\u2019s argument that it had a statutory right to refuse plaintiff\u2019s request to inspect these materials because such materials were not \u201cused for any official personnel decision.\u201d\nWhile the General Assembly uses the phrase \u201cofficial personnel decision\u201d in four other provisions of the General Statutes, see N.C. Gen. Stat. \u00a7 122C-158(d)(4) (2011) (regarding privacy of personnel records for employees of facilities delivering services for mental health, developmental disabilities, and substance abuse); N.C. Gen. Stat. \u00a7 131E-257.2(d)(4) (2011) (regarding privacy of personnel records for public hospital employees); N.C. Gen. Stat. \u00a7 153A-98(cl)(4) (2011) (regarding privacy of personnel records for county employees); N.C. Gen. Stat. \u00a7 162A-6.1(d) (4) (2011) (regarding privacy of personnel records for water and sewer authorities\u2019 employees), the General Assembly has not explicitly defined this phrase.\nAs we recognized above, \u201c [statutory interpretation properly begins with an examination of the plain words of the statute,\u201d because \u201c[t]he legislative purpose of a statute is first ascertained by examining the statute\u2019s plain language.\u201d Correll v. Div. of Soc. Servs., 332 N.C. 141, 144, 418 S.E.2d 232, 235 (1992); see also Perkins, 351 N.C. at 638, 528 S.E.2d at 904 (\u201c[C]ourts may look to dictionaries to determine the ordinary meaning of words within a statute.\u201d). \u201cIf a statute \u2018contains a definition of a word used therein, that definitioil controls,\u2019 but nothing else appearing, \u2018words must be given their common and ordinary meaning.\u2019 \u201d Knight Publ\u2019g Co. v. Charlotte-Mecklenburg Hosp. Auth., 172 N.C. App. 486, 492, 616 S.E.2d 602, 607 (quoting In re Clayton-Marcus Co., 286 N.C. 215, 219, 210 S.E.2d 199, 202-03 (1974)), disc. review denied, 360 N.C. 176, 626 S.E.2d 299 (2005).\nGenerally, \u201cofficial\u201d is defined as \u201cby, from, or with the proper authority; authorized or authoritative\u201d; \u201cpersonnel\u201d is defined as \u201cpersons employed in any work, enterprise, service, establishment, etc.\u201d; and \u201cdecision\u201d is defined as \u201ca judgment or conclusion reached or given.\u201d Webster\u2019s New World Dictionary 366, 988, 1062 (2d ed. 1974). Thus, according to the plain meaning of the terms comprising this phrase, an \u201cofficial personnel decision\u201d is an authorized or authoritative judgment or conclusion of or pertaining to employed persons. Since \u201cpersonnel\u201d is a collective noun, the plain meaning of this phrase \u2014 as it is used in this statute \u2014 more specifically refers to authorized or authoritative judgments or conclusions of or pertaining to the employed person about whom the judgment or conclusion is rendered. Gastonia urges this Court to narrowly construe this phrase to apply only to those \u201cdecisions\u201d that result in \u201csome type of change or alternation [sic] in employment.\u201d (Emphasis added.) However, Gastonia provides no meaningful support for its narrowly-drawn interpretation. Instead, we think the General Assembly\u2019s use of the term \u201cpersonnel\u201d in subsection (a) of this statute is consistent with a less-constrained reading of the phrase \u201cofficial personnel decision,\u201d as the phrase is used in subsection (d)(4), and is also instructive in construing the meaning of the challenged phrase within the context of this statute.\nThe General Assembly broadly defines the phrase \u201cemployee\u2019s personnel file\u201d as \u201cconsisting] of any information in any form gathered by the city with respect to that employee.\u201d N.C. Gen. Stat. \u00a7 160A-168(a) (emphasis added). In other words, according to the General Assembly, the information included in a city employee\u2019s personnel file is not limited to information that, as Gastonia might suggest based on its asserted plain meaning of the term \u201cpersonnel,\u201d concerns only changes in employment like promotions, demotions, or transfers. Rather, according to the express language of the statute, the information in a city employee\u2019s personnel file also concerns \u201cnonselection,\u201d \u201cperformance,\u201d \u201cevaluation forms,\u201d as well as other information \u201cin any form gathered by the city with respect to that employee.\u201d See id. In fact, the General Assembly expressly declines to limit what form the information included in an employee\u2019s personnel file may take, by providing a list of examples of information that it specifies is offered \u201cby way of illustration but not limitation.\u201d See id. (emphasis added). Thus, with respect to the phrase \u201cofficial personnel decision,\u201d as it is used in the context of the subsection (d)(4) exemption, we are of the opinion that the General Assembly similarly intended that an \u201cofficial personnel decision\u201d need not be limited only to those determinations that result in a change to an employee\u2019s position of employment, as Gastonia suggests. Therefore, we conclude that when an informal, provisional, or otherwise \u201cpreliminary\u201d or \u201cinternal\u201d communication, note, or draft concerning an employee is included in his or her personnel file, that communication, note, or draft is subject to the disclosure requirement of subsections (c)(1) and (d)(4) when such materials are used to make an authorized or authoritative judgment or conclusion with respect to that employee.\nAccording to the depositions of both Chief Adams and Sergeant Reid E. Brafford, who is the supervisor of the Office of Professional Standards and reports directly to Chief Adams, once the investigations were concluded, the complete investigative files for each complaint, which included all of the documents necessary to develop a thorough investigative file into both complaints, were provided to Chief Adams, the senior-most official of the department. In accordance with departmental policy, Chief Adams is the person authorized to serve as the final decision-maker with respect to complaints of misconduct against employees and to adjudicate such matters on behalf of the department. Chief Adams analyzed the facts and issues arising out of the complaints as detailed in each document comprising the investigative files and weighed all of the evidence based on the information included in the respective investigative files in order to finally determine each matter. After considering all of the information included in each document in the investigative files, Chief Adams finally decided to dismiss or terminate the complaints made against plaintiff and determined, as a result of the respective investigations, that no disciplinary action need be taken against plaintiff in either matter. In other words, Chief Adams was authorized to, and did, use IA Investigative Case Files 2008265 and 2008307 to finally adjudicate matters pertaining to plaintiff.\nGastonia insists, however, that because plaintiff \u201cexperienced no change\u201d in his employment as a result of Chief Adams\u2019s final adjudications regarding the complaints against plaintiff, Chief Adams \u201cmade no \u2018official personnel decision\u2019 with regards to the two disputed IA investigative files,\u201d and, thus, plaintiff failed to establish that he is entitled to inspect the investigative files under subsection (d)(4). Nonetheless, as we recognized above, the General Assembly provided in subsection (a) that an employee\u2019s \u201cpersonnel\u201d file may include information regarding \u201cselection or nonselection\u201d \u201cperformance,\u201d \u201cevaluation forms,\u201d as well as other information \u201cin any form\u201d \u201cwith respect to that employee.\u201d N.C. Gen. Stat. \u00a7 160A-168(a) (emphasis added). Similarly, even though Chief Adams\u2019s decisions did not result in a change in plaintiff\u2019s employment, we are persuaded that Chief Adams made official personnel decisions, as we have construed this phrase, to finally dismiss or terminate the complaints against plaintiff and to take no disciplinary action against him using the information included in the IA investigative files. Therefore, assuming arguendo that IA Investigative Case Files 2008265 and 2008307 were materials to which the disclosure exemptions of subsection (cl) (4) applied, because we are persuaded that such materials were used by Chief Adams to make official personnel decisions with respect to plaintiff, we conclude that plaintiff has a statutory right to inspect the requested files under subsection (d)(4).\nGastonia next argues that it did not violate N.C.G.S. \u00a7 160A-168 by denying plaintiff\u2019s request to inspect the documents at issue, because the requested documents \u201care separate files employed for the maintenance of confidentially [sic] and protection of [Gastonia\u2019s] IA investigation program.\u201d Gastonia appears to suggest that physically separating the IA investigative files at issue from other materials in plaintiff\u2019s employee personnel file renders the disclosure requirements of this statute inapplicable to the requested files. Nevertheless, perhaps because Gastonia realized the untenability of its argument, seeking an exemption from a statutory requirement to disclose certain documents while simultaneously arguing that the statute under which the disclosure requirement arises is inapplicable to the type of documents for which it seeks the statutory exemption, Gastonia conceded during oral arguments that the requested files are a part of plaintiff\u2019s employee personnel file under N.C.G.S. \u00a7 160A-168(a). Additionally, Gastonia does not direct this Court to any relevant authority which exempts the requested files from the disclosure mandate of N.C.G.S. \u00a7 160A-168(c)(l), requiring that, with limited exception, all \u201cconfidential\u201d information in a city employee\u2019s personnel file \u201cshall be open to inspection\u201d by that employee. Thus, we find no support for Gastonia\u2019s assertion that \u201cseparately\u201d \u201cmaintain[ing]\u201d these IA investigative files, which it concedes are a part of plaintiff\u2019s employee personnel file, exempts Gastonia from its statutory obligation under N.C.G.S. \u00a7 160A-168(c)(l) to allow plaintiff to inspect this \u201cconfidential\u201d information.\nFinally, we note that the dissent raises a public policy argument that advocates for Gastonia\u2019s right to provide plaintiff with redacted information from plaintiff\u2019s own employee personnel file. Since Gastonia does not present argument to this Court that it could satisfy the mandatory disclosure requirement of N.C.G.S. \u00a7 160A-168(c)(l) by allowing plaintiff to inspect \u201cconfidential\u201d information from his own employee personnel file that had been subjectively redacted by Gastonia, and since \u201cquestions as to public policy axe for legislative determination,\u201d see Home Sec. Life Ins. Co. v. McDonald, 277 N.C. 275, 285, 177 S.E.2d 291, 298 (1970), we find such a discussion to be inapposite to the issues properly before us.\nAccordingly, we conclude the trial court did not err when it granted summary judgment in favor of plaintiff, denied Gastonia\u2019s cross-motion for summary judgment, and ordered Gastonia to disclose to plaintiff unredacted copies of all documents contained in Gastonia Police Department\u2019s IA Investigative Case Files 2008265 and 2008307.\nAffirmed; Remanded for further proceedings.\nJudge HUNTER concurs:\nJudge DILLON concurs in part and dissents in part.\n. Subsection (c)(1) provides that all information contained in a city employee\u2019s personnel file other than that which is deemed a matter of public record under subsection (b) \u201cshall be open to inspection\u201d to an \u201cemployee or his duly authorized agent... except (i) letters of reference solicited prior to employment, and (ii) information concerning a medical disability, mental or physical, that a prudent physician would not divulge to his patient.\u201d N.C. Gen. Stat. \u00a7 160A-168(c)(l). Because neither plaintiff nor Gastonia assert that these exceptions are applicable to the files requested in the present case, we do not address these exceptions further.\n. Subsections (c)(1) and (cl) of N.C.G.S. \u00a7 160A-168 are similarly-enumerated provisions of the same statute; subsection (cl) was added to N.C.G.S. \u00a7 160A-168 by the General Assembly in 1981, after subsections (a) through (f) were already codified. See 1981 N.C. Sess. Laws 1424,1425, ch. 926, \u00a7 3; 1975 N.C. Sess. Laws 929, 930-32, ch. 701, \u00a7 2. Because this opinion makes repeated references to both subsections, we caution the reader to be mindful of the potential confusion these similar designations may cause.",
        "type": "majority",
        "author": "MARTIN, Chief Judge."
      },
      {
        "text": "DILLON, Judge,\nconcurring in part and dissenting in part.\nI concur with the majority\u2019s holding that, although interlocutory, the trial court\u2019s summary judgment order is immediately appealable as the order affects a substantial right. I also concur with the majority\u2019s holding that the information sought by Plaintiff falls within the scope of N.C. Gen. Stat. \u00a7 160A-168(a) (2011), as part of Plaintiff\u2019s employee personnel file. However, I respectfully dissent from the portion of the majority opinion defining \u201cofficial personnel decision\u201d and affirming the trial court\u2019s order, because I believe, based on the facts of this case and the issues properly before us, that the information sought by Plaintiff falls under the exemption contained in N.C. Gen. Stat. 160A-168(cl)(4) (2011).\nIn the case sub judice, Plaintiff, a police officer employed by Defendant, was the subject of two separate internal affairs investigations which arose out of complaints filed against him, one by a citizen and one by a fellow police officer. After investigations were conducted, both complaints were dismissed by Plaintiffs superior, Chief of Police Tim Adams (Chief Adams), with no action taken against Plaintiff. Plaintiff, however, sought from Defendant access to the contents of the internal investigation files. Based on the record, it appears that Defendant has provided all of the requested information to Plaintiff, but with the identities of the people who lodged the initial complaints redacted. Plaintiff filed this appeal to compel Defendant to disclose the identity of the citizen and the police officer who filed the complaints.\nI: Exemption, N.C. Gen. Stat. \u00a7 160A-168(cl)(4)\nDefendant argues that even if the information is part of Plaintiff\u2019s \u201cemployee personnel file\u201d pursuant to N.C. Gen. Stat. \u00a7 160A-168(a), Defendant may, nonetheless, withhold the information from Plaintiff pursuant to the exemption in N.C. Gen. Stat. \u00a7 160A-168(cl)(4), which provides the following:\n(cl) Even if considered part of an employee\u2019s personnel file, the following information need not be disclosed to an employee nor to any other person:\n(4) Notes, preliminary drafts and internal communications concerning an employee. In the event such materials are used for any official personnel decision, then the employee or his duly authorized agent shall have a right to inspect such materials.\nId. Therefore, to qualify for the exemption from disclosure under (cl) (4), the information sought (1) must be comprised of \u201c[n]otes, preliminary drafts [or] internal communications [,]\u201d and (2) must not have been \u201cused for any official personnel decision[.]\u201d Id. The majority ultimately bases its holding on the second requirement, concluding that the requested information was used for \u201cofficial personnel decision^]\u201d as follows: \u201cNevertheless, even assuming without deciding that the IA investigative files that plaintiff seeks to inspect are [notes, preliminary drafts and internal communications], we are not persuaded by Gastonia\u2019s argument that it had a statutory right to refuse plaintiff\u2019s request to inspect these materials because such materials were not \u2018used for any official personnel decision.\u2019 \u201d I disagree with the majority and believe that the decisions by Chief Adams not to sustain the complaints did not rise to the level of \u201cofficial personnel decision^]\u201d under (d)(4). I believe the proper holding in this case is to reverse the trial court\u2019s entry of summary judgment in favor of Plaintiff and to remand the case to the trial court for entry of an order granting Defendant\u2019s motion for summary judgment.\nBased on the record and the arguments of the parties, the only issue regarding the application of (d)(4) concerns the question of whether an \u201cofficial personnel decision\u201d was made, and not whether the materials were \u201c[n]otes, preliminary drafts and internal communications[.j\u201d N.C. Gen. Stat. \u00a7 160A-168(d)(4). At the summary judgment hearing below, Plaintiff conceded that the only issue in this case regarding the applicability of (d)(4) concerns whether the materials were \u201cused for [an] official personnel decision\u201d:\nTHE COURT: But it sounds like what my decision really boils down to in this case is a matter of statutory interpretation of [N.C. Gen. Stat. \u00a7] 160A-168 subsection (cl) (4). \u201cIn the event such materials are used for any official personnel decision, then the employer\u2019s duly authorized agent shall have the right to inspect such material [sic].\u201d So what I am being called on to decide is, does that mean what it says, any official personnel decision including the determination of what if any consequences are suffered as a result of that internal affairs investigation. Or does that really mean any other official personnel decision, other than [a] determination of the subject of the internal affairs inquiry. Is that really what it boils down to?\n[PLAINTIFFS COUNSEL]: Your Honor, I think ... the foremost determination that you have to make ... [is whether Defendant has] to comply with that statute because their chief of police, and I give him credit for this, their chief of police testified under oath that he made a personnel decision.\nLikewise, Plaintiff does not make an argument in his brief with this Court that the information requested is not \u201c[n]otes, preliminary drafts [or] internal communications[.]\u201d N.C. Gen. Stat. \u00a7 160A-168(cl)(4). Rather, Plaintiff argues that subsection \u201c(d)(4) essentially presents one question: were the documents [at] issue used for any official personnel decision? Chief Adams used the information from the documents in making his final official personnel decision.\u201d\nThe majority states that \u201cwe cannot conclude that the IA investigative files that plaintiff seeks to inspect are each a note, a preliminary draft, or an internal communication,\u201d recognizing that not all of the materials sought by Plaintiff are even part of the record. However, though not part of its holding, the majority does state that it appears the General Assembly intended the phrase \u201cnotes, preliminary drafts and internal communications\u201d as used in (d)(4) to apply to \u201cmaterials that are informal or provisional in character],]\u201d relying on Webster\u2019s Dictionary definitions for \u201cnote\u201d and \u201cdraft.\u201d Specifically, the majority refers to Webster\u2019s definition of \u201cnote\u201d as being \u201ca brief statement of a fact, experience, etc. written down for review, as an aid to memory, or to inform someone else[.]\u201d Based on evidence of record, I believe that at least some portions of the IA investigative file \u2014 collections of statements of facts or experiences, \u201cwritten down for review\u201d by Chief Adams or \u201cto inform\u201d Chief Adams \u2014 falls within the majority\u2019s stated definition of \u201cnotes.\u201d Additionally, the record does contain a redacted memorandum to Chief Adams drafted by the officer who investigated one of the complaints against Plaintiff, which I believe clearly constitutes an \u201cinternal communication concerning an employee\u201d within the plain meaning of (d)(4).\nI also find the Supreme Court\u2019s decision in News and Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992), informative as to the meaning of \u201cpreliminary draft.\u201d In that case, the UNC system president appointed a commission to investigate alleged improprieties relating to a university\u2019s men\u2019s basketball team. Id. at 470, 412 S.E.2d at 10. At the conclusion of the investigation, members of the commission submitted reports to the UNC system president. Id. at 483, 412 S.E.2d at 18. The plaintiff newspaper sought, in part, the disclosure of those investigative reports pursuant to the Public Records Law. Id.; see also N.C. Gen. Stat. \u00a7 132-6. In that case, the reports prepared by the commission were described as \u201cpreliminary draft reports.\u201d Poole, 330 N.C. at 484, 412 S.E.2d at 34. The Court\u2019s language suggests and could be construed to stand for the proposition that the product of an investigation (e.g., reports) submitted for review by a person in authority may constitute \u201cpreliminary drafts.\u201d\nI now turn to the phrase \u201cofficial personnel decision[.]\u201d Neither party nor the majority cites any case law in which this phrase has been construed or applied. Rather, by combining the respective definitions for \u201cofficial,\u201d \u201cpersonnel,\u201d and \u201cdecision\u201d as contained in Webster\u2019s DICTIONARY, the majority interprets the statutory phrase as follows: \u201c[T]he plain meaning of this phrase \u2014 as used in this statute \u2014 more specifically refers to authorized or authoritative judgments or conclusions of or pertaining to the employed person about whom the judgment or conclusion is rendered.\u201d (emphasis added). I believe the majority\u2019s definition is overly broad because it could be applied essentially to any \u201cpersonnel decision,\u201d rendering the word \u201cofficial\u201d in the statutory language meaningless. See Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 216, 388 S.E.2d 134, 140 (1990) (stating that \u201c[a] statute must be construed, if possible, so as to give effect to every provision, it being presumed that the Legislature did not intend any of the statute\u2019s provisions to be surplusage\u201d). The majority fails to recognize that every legitimate personnel decision which occurs in a workplace, by its nature, is a judgment or conclusion made by someone authorized to make the decision. I believe that the General Assembly did not intend that the word \u201cofficial\u201d be surplusage, but rather intended for the word \u201cofficial\u201d to modify \u201cpersonnel decision\u201d to limit the phrase\u2019s application.\nIn further support of a broad interpretation of \u201cofficial personnel decision,\u201d the majority states that \u201cwe think the General Assembly\u2019s use of the term \u2018personnel\u2019 in subsection (a) of this statute is consistent with a less-constrained reading of the phrase \u2018official personnel decision,\u2019 as the phrase is used in subsection (d)(4), and is also instructive in construing the meaning of the challenged phrase within the context of this statute.\u201d In other words, the majority argues that the General Assembly must have intended for \u201cofficial personnel decision\u201d to be construed broadly since the phrase \u201cemployee\u2019s personnel file\u201d in subsection (a)' is defined broadly and both phrases relate to \u201cpersonnel.\u201d I agree with the majority that, in construing the phrase \u201cofficial personnel decision,\u201d the entire statute should be read in context and the definition of \u201cemployee\u2019s personnel file\u201d as used in subsection (a) should be considered. However, the majority\u2019s comparison of the two phrases is flawed because it ignores the fact that the General Assembly chose to incorporate the modifier \u201cofficial\u201d to limit the scope of \u201cpersonnel\u201d in (d)(4), but did not do so in subsection (a).\nWhile our courts have never construed or applied the phrase \u201cofficial personnel decision,\u201d our courts have used the phrase \u201cpersonnel decision\u201d on a number of occasions to describe a broad range of workplace decisions made by someone in a position of authority, all of which would fit the majority\u2019s definition of \u201cofficial personnel decision.\u201d See, e.g., In re Officials of Kill Devil Hills Police Dep\u2019t., N.C. App. _, _, 733 S.E.2d 582, 587 (2012) (overruling the trial court\u2019s attempt to discipline a Chief of Police and other police officers and referring to such decisions as rightfully the department\u2019s \u201cpersonnel decisions\u201d); Bulloch v. N.C. Dept. of Crime Control & Pub. Safety, _ N.C. App. _, _, 732 S.E.2d 373, 379, disc. review denied, _ N.C. _, 735 S.E.2d 178 (2012) (referring to a Line Sergeant\u2019s dismissal from employment with the North Carolina Highway Patrol, on grounds of unacceptable personal conduct, as a \u201cpersonnel decision\u201d); Bradley v. Bradley, 206 N.C. App. 249, 257, 697 S.E.2d 422, 427 (2010) (using the term \u201cpersonnel decision\u201d to describe a decision by one in a position of authority that would \u201cin any way change, modif[y], or affect\u201d another\u2019s \u201crights, positions, or ownership interest\u201d in a company); Zimmerman v. Appalachian State Univ., 149 N.C. App. 121, 133, 560 S.E.2d 374, 382 (2002) (referring to the decision by administrators of Appalachian State University not to offer a reappointment contract to a non-tenured faculty member as a \u201cpersonnel decision\u201d).\nIt is interesting that Defendant presents an argument in its brief, in essence, that the information sought by Plaintiff does not even fall within the definition of \u201cemployee\u2019s personnel file\u201d in subsection (a) because the information is stored by Defendant separately from Plaintiff\u2019s official personnel file. N.C. Gen. Stat. \u00a7 160A-168(a). I agree, though, with the majority that the General Assembly expressly intended the phrase \u201cemployee\u2019s personnel file\u201d in subsection (a) to be construed more broadly than Defendant argues, and not to apply only to materials stored within an employee\u2019s official personnel file. Otherwise, the General Assembly could have employed the phrase \u201cemployee\u2019s official personnel file\u201d in subsection (a).\nOur courts have recognized that even though \u201c[g]ood public policy is said to require liberality in the right to examine public records . . . some degree of confidentiality is necessary for government to operate effectively[.]..Advanced Publications, Inc. v. Elizabeth City, 53 N.C. App. 504, 506, 281 S.E.2d 69, 70-71 (1981); see also News and Observer Publishing Co. v. Poole, 330 N.C. 465, 475, 412 S.E.2d 7, 13 (1992). I believe the General Assembly enacted the exemptions in subsection (cl) to recognize the interest of government to keep certain information confidential and enable supervisors to better manage the employees in their respective governmental departments. The Fourth Circuit Court of Appeals has recognized this legitimate concern in the context of internal affairs investigations within police departments:\n[Internal] investigations face an uphill battle due to the so-called \u201cblue wall,\u201d the tendency of law enforcement officers to place solidarity above all else and to be less than fully cooperative with investigations of fellow officers. \u201cOfficers who report misconduct are ostracized and harassed; becoming targets of complaints and even physical threats; and are made to fear that they will be left alone on the streets in a time of crisis.\u201d In such a setting, the confidentiality of internal investigations may be not only desirable but essential.\nIn re Grand Jury, John Doe No. G.J.2005-2, 478 F.3d 581, 586 (4th Cir. 2007) (internal citation omitted).\nDefendant has addressed this concern in its Policies and Procedures, a portion of which is part of the record and includes the following:\nIn order to safeguard the anonymity of complain[ants] who wish to remain anonymous, and because charges are based only on the results of an investigation, an officer who is charged with an offense will have access only to that material which will be introduced against him or her in a departmental hearing.\nAdditionally, according to Defendant\u2019s policies a police officer does not even have the right to know the facts surrounding a complaint against him until the investigation is completed, and only then if the Chief of Police recommends disciplinary action. By way of analogy, consider the Rules of our State\u2019s Judicial Standards Commission regarding the investigation of North Carolina judges. Specifically, Rule 6 states that unless an investigation results in the issuance of a public reprimand or the institution of a disciplinary proceeding, a judge does not have the absolute right to know the identity of the person filing the complaint or even that a complaint has been lodged. See North Carolina Rules of the Judicial Standards Commission, Rule 6 (stating that \u201cthe investigative officer may notify respondent that a complaint has been received and may disclose to respondent the name of the person making the complaint\u201d) (emphasis added); see also Brock & Scott Holdings, Inc. v. Stone, 203 N.C. App. 135, 137, 691 S.E.2d 37, 38 (2010) (stating that the \u201cuse of [the word] \u2018may\u2019 generally connotes permissive or discretionary action and does not mandate or compel a particular act\u201d).\nWhile I believe that the General Assembly enacted the exemptions in subsection (d)(4) to allow governmental departments to maintain a level of confidentiality in its dealings with internal employment matters, I believe the General Assembly incorporated the phrase \u201cofficial personnel decision\u201d in subsection (d)(4) to balance this government\u2019s interest with an employee\u2019s interest to confront and address information that is used in official decisions affecting his employment. N.C. Gen. Stat. \u00a7 160A-168(cl)(4).\nIn this case, the majority concludes the decisions by Chief Adams not to recommend that disciplinary action be taken against Plaintiff constitute \u201cofficial personnel decisions.\u201d Though Chief Adams\u2019 decisions could arguably constitute \u201cpersonnel decisions,\u201d I do not believe that these decisions constitute \u201cofficial personnel decisions\u201d under (d)(4). Rather, Chief Adams\u2019 decisions involved the classification of complaints rather than a recommendation or order affecting the Plaintiff\u2019s position of employment. I do not believe Chief Adams\u2019 actions would have risen to the level of \u201cofficial personnel decision^]\u201d unless he had sustained the complaints and had recommended discipline against Plaintiff. Under the majority\u2019s definition, even the decision by the investigating officer to commence investigations after receiving the complaints would require the Plaintiff be notified about the impending investigation, thus possibly compromising the ability of the investigating officer to compile evidence.\nBased on the foregoing, I would conclude that the decision by Chief Adams to classify the two complaints against Plaintiff as \u201cnot sustained\u201d did not rise to the level of an \u201cofficial personnel decision\u201d under (d)(4).\nII: Redaction and Public Policy\nThis Court has held that, as a matter of public policy, information which falls under the Public Records Act may be provided with the identities of certain individuals redacted to insure the \u201csafety and security\u201d of the individuals, notwithstanding the lack of a statute authorizing the redaction. S.E.T.A. UNC-CH v. Huffines, 101 N.C. App. 292, 295, 399 S.E.2d 340, 342 (1991). In S.E.T.A., the plaintiff sought certain records concerning animal experiments being conducted at UNC-Chapel Hill. Id. at 293, 399 S.E.2d at 341. The University argued, in part, that the names of the individuals conducting the research should not be disclosed because of concerns regarding the safety of the researchers and because of the potential \u201cchilling effect\u201d disclosing their identities might have on the University finding other individuals willing to conduct animal research. Id. at 295, 399 S.E.2d at 343. This Court ordered that the portions of the research records, not otherwise subject to a statutory exemption, be made available for inspection under the Public Records Act, but that the University could redact the names of the researchers based on public policy concerns. Id. at 298, 399 S.E.2d at 344.\nIn this case, Plaintiff has admitted in his complaint and argues in his brief that one of his motivations to discover the identity of the complainants is so that he can sue them. In the hearing on the motions for summary judgment, Plaintiff\u2019s attorney spoke openly about possible causes of action, stating, \u201cwe might have had us a decent defamation claim[.]\u201d I believe that, because of the threat of a lawsuit and also for the safety concerns quoted in In re Grand Jury above, divulging the names of complainants would have a chilling effect on police officers and others reporting misconduct and would affect Chief Adams\u2019 ability to manage his department effectively.\nBased on this Court\u2019s reasoning in S.E.T.A., supra, as a matter of public policy, a municipal employer should be allowed to redact certain information when providing an employee with information that may be, technically, within an employee\u2019s personnel file. Such redactions may include the identities of those who alert their managers of misconduct by co-workers where the testimony of the original complainant is not used or needed to sustain the complaint or where the complaint is, otherwise, not sustained. Therefore, even if the materials sought by Plaintiff falls outside the exemption in subsection (d)(4), I believe Defendant acted appropriately by providing the information with the names of the complainants redacted based on the public policy concern that has been recognized by this Court.\nIV: Conclusion\nFor the reasons stated above, I would reverse the decision of the trial court to grant Plaintiff\u2019s motion for summary judgment, and I would reverse the decision of the trial court to deny Defendant\u2019s motion for summary judgment. Contrary to the decision of the majority, I believe the law requires that this Court remand this case to the trial court for entry of summary judgment in favor of Defendant.\n. At the hearing on the motions for summary judgment, the trial court asked whether \u201cthe city\u2019s position is the plaintiff doesn\u2019t get anything from the IA file[,]\" to which Defendant\u2019s attorney stated, \u201c|j]ust the identity of the individuals who made the [complaints].\u201d When the court further inquired, \u201cso everything else has been disclosed,\u201d Defendant\u2019s attorney responded, \u201cYes[.]\u201d This is a fact that Plaintiff does not dispute.\n. The second part of the exemption in subsection (d)(4) requires that the materials not be \u201cused\u201d in any \u201cofficial personnel decision.\u201d Defendant does not argue that a genuine issue of material fact exists as to whether Chief Adams \u201cused\u201d the information sought by Plaintiff, i.e., the names of the complainants, to make his determination not to sustain the complaints. As such, the analysis is properly limited to the definition of the phrase \u201cofficial personnel decision.\u201d\n. In construing N.C. Gen. Stat. \u00a7 153A-98(a), which defines \u201cpersonnel file\u201d for a county employee with identical language to that used in N.C. Gen. Stat. \u00a7 160A-168(a) to define a personnel file for a municipal employee, this Court held that whether a document is part of a \u201c \u2018personnel file\u2019... depends upon the nature of the document and not upon where the document has been filed.\u201d News Reporter Co. v. Columbus County, 184 N.C. App. 512, 516, 646 S.E.2d 390, 393 (2007).",
        "type": "concurring-in-part-and-dissenting-in-part",
        "author": "DILLON, Judge,"
      }
    ],
    "attorneys": [
      "The McGuinness Law Firm, by J. Michael McGuinness, for plaintiff-appellee.",
      "CranfUlSumner&HartzogLLP, byJayeE. Bingham-Hinch, Patrick H. Flanagan, and Bradley P. Kline, for defendant-appellant.",
      "North Carolina State Lodge of the Fraternal Order of Police, by Richard L. Hattendorf, amicus curiae."
    ],
    "corrections": "",
    "head_matter": "DAVID B. WIND, Plaintiff v. THE CITY OF GASTONIA, NORTH CAROLINA, A Municipal Corporation, Defendant\nNo. COA12-421\nFiled 19 March 2013\n1. Appeal and Error \u2014 interlocmtory orders and appeals\u2014 substantial right \u2014 privileged information\nBecause the trial court\u2019s interlocutory order compelled production of files which may be privileged pursuant to N.C.G.S. \u00a7 160A-168 the trial court\u2019s order affected a substantial right and was immediately appealable.\n2. Public Officers and Employees \u2014 police officer \u2014 right to inspection of documents \u2014 employee personnel file \u2014 official personnel decisions\nThe trial court did not err by concluding that defendant City violated N.C.G.S. \u00a7 160A-168 by denying plaintiff police officer\u2019s request to inspect the pertinent documents in his employee personnel file. Assuming arguendo that Internal Affairs Investigative Case Files 2008265 and 2008307 were materials to which the disclosure exemptions of subsection (d)(4) applied, such materials were used by Chief Adams to make official personnel decisions with respect to plaintiff, and thus, plaintiff had a statutory right to inspect the requested files under subsection (d)(4).\n3. Discovery \u2014 statutory obligation to allow inspection of confidential information \u2014 employee personnel file\nSeparately maintaining Internal Affairs investigative files, which defendant City conceded were a part of plaintiff\u2019s employee personnel file, did not exempt defendant from its statutory obligation under N.C.G.S. \u00a7 160A-168(c)(l) to allow plaintiff to inspect this \u201cconfidential\u201d information.\n4. Appeal and Error \u2014 preservation of issues \u2014 failure to argue\nSince defendant City did not argue that it could satisfy the mandatory disclosure requirement of N.C.G.S. \u00a7 160A-168(c)(l) by allowing plaintiff to inspect \u201cconfidential\u201d information from his own employee personnel file that had been subjectively redacted by defendant, and since questions as to public policy are for legislative determination, such a discussion was inapposite to the issues.\nJudge DILLON concurring in part and dissenting in part.\nAppeal by defendant from order entered 1 November 2011 by Judge Forrest Donald Bridges in Gaston County Superior Court. Heard in the Court of Appeals 7 January 2013.\nThe McGuinness Law Firm, by J. Michael McGuinness, for plaintiff-appellee.\nCranfUlSumner&HartzogLLP, byJayeE. Bingham-Hinch, Patrick H. Flanagan, and Bradley P. Kline, for defendant-appellant.\nNorth Carolina State Lodge of the Fraternal Order of Police, by Richard L. Hattendorf, amicus curiae."
  },
  "file_name": "0180-01",
  "first_page_order": 190,
  "last_page_order": 209
}
