News Reporter Co., Inc. v. Columbus County
News Reporter Co., Inc. v. Columbus County
Opinion of the Court
This 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. §§ 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 *392of the letter are protected from disclosure, those portions can be redacted, and the remainder-falling within the Public Records Act-provided to plaintiffs.
Facts
In 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's medical director. That contract expired on 1 July 2004, and, in 2005, the Columbus County Board of Commissioners ("the Board") 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's contract.
Plaintiffs' request for a copy of Hayes' 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. § 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.
On 20 February 2006, the trial court entered summary judgment in favor of defendants in a summary decision, concluding only "that there is no genuine issue of material fact and Defendants are entitled to judgment as a matter of law." Plaintiffs timely appealed from this order.
Discussion
The 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 "public record" within the meaning of the Public Records Act, N.C. Gen.Stat. § 132-1, and (2) if so, is the letter exempted from disclosure as a personnel record under N.C. Gen.Stat. § 153A-98 (2005)? These questions present issues of law regarding the interpretation of §§ 132-1 and 153A-98 as applied to the undisputed facts. This case is, therefore, "a proper case for summary judgment." Knight Publ'g Co. v. Charlotte-Mecklenburg Hosp. Auth.,
"Under the Public Records Act, the public generally has liberal access to public records." Id. at 489,
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 of any county, unit, special district or other political subdivision of government.
N.C. Gen.Stat. § 132-1(a) (emphases added).
It is undisputed that Hayes' 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.,
Our Supreme Court has held that "in the absence of clear statutory exemption or exception, documents falling within the definition of `public records' in the Public Records Law must be made available for public inspection." News & Observer Publ'g Co. v. Poole,
Defendants, however, contend that the Hayes letter falls within the statutory exemption provided by N.C. Gen.Stat. § 153A-98, which provides in pertinent part:
(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's 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....
. . . .
(c) All information contained in a county employee's 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 . . . .
(Emphasis added.) Our Supreme Court has held that if a document falls within the scope of N.C. Gen.Stat. § 153A-98(a), then it is "not governed by N.C.G.S. § 132-6 of the Public Records Act because N.C.G.S. § 153A-98 provides such inspection and disclosure may only be done as provided by that section." Elkin Tribune, Inc. v. Yadkin County Bd. of County Comm'rs,
Hayes' 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 § 153A-98 as a personnel record of Dr. Obrecht. Instead, defendants contend that the letter constitutes a "personnel record" because it relates to Hayes' performance as a county employee and it was placed in his personnel file.
Initially, plaintiffs argue that § 153A-98 does not apply because Hayes' letter was not "gathered" 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,
On the other hand, we disagree with defendants' suggestion that the fact defendant Varner chose to place the letter in Hayes' personnel file has any bearing on whether that letter falls within the scope of § 153A-98. Whether a document is part of a "personnel file," within the meaning of § 153A-98(a), depends upon the nature of the document and not upon where the document has been filed. See Poole
Further, defendants' contention would allow governmental officials to avoid disclosure of a document under the Public Records Act simply by placing a document in an employee's file. Our Supreme Court has held that "[a] custodian of such `public records' has no discretion to prevent public inspection and copying of such records." Virmani,
After examining the letter at issue, we believe that the portions discussing Hayes' interactions with Dr. Obrecht constitute "any information in any form gathered by the county with respect to that employee ... relating to his ... performance...." N.C. Gen.Stat. § 153A-98(a). The letter does not comment on Dr. Obrecht's qualifications, skill, or reputation as a physician or on whether Dr. Obrecht's medical skills and training were a good match for the County's needs, but rather discusses Hayes' ability to work with Dr. Obrecht. We believe that the letter, to the extent it discusses Dr. Obrecht, also relates to Hayes' performance as a county employee.
Plaintiffs, however, point to Poole,
The Hayes letter is not, however, limited to discussing Dr. Orbecht, but also addresses Hayes' recommendation of Dr. Peggy Barnhill for the position of county medical director. In addition, it contains a paragraph describing Hayes' 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.
N.C. Gen.Stat. § 153A-98(a) does not protect all information "with respect to" an employee. Instead, it requires both (1) that the information be "with respect to" the employee, and (2) that it "relat[e] to" a list of subjects arising out his employment, although that list is "by way of illustration but not limitation."
*395We can perceive no basis for considering the Barnhill portion of the letter or the description of the Board's conduct to be "any information" gathered by the County "with respect to" the types of matters governed by § 153A-98(a) regarding Hayes' employment with the County.
Accordingly, defendants may redact those portions of the Hayes letter protected from disclosure by § 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 "However . . . .") and the entirety of the letter's second paragraph (beginning "We have . . . ."), third paragraph (beginning "There have . . . ."), and sixth paragraph (beginning "I feel . . . ."). The first sentence of the fourth paragraph (beginning "As you gentlemen are aware . . . .") must also be redacted. The remainder of the first paragraph, together with the remainder of the fourth paragraph (beginning "As you are also aware . . . .") and the fifth paragraph (beginning "At this time . . . .") must be provided to plaintiffs.
Affirmed in part and reversed in part.
Judges LEVINSON and JACKSON concur.
We are not required by this appeal to examine the precise scope of this second requirement of § 153A-98(a).
Reference
- Full Case Name
- The NEWS REPORTER CO., INC., d/b/a The News Reporter and Atlantic Corporation, d/b/a The Tabor-Loris Tribune v. COLUMBUS COUNTY and James Varner, in his official capacity as Columbus County Manager
- Cited By
- 3 cases
- Status
- Published