A three-judge panel of the N.C. Court of Appeals heard oral arguments Monday in a public records dispute over minutes of closed sessions held by the Alamance-Burlington School System Board of Education. The board has declined to release un-redacted minutes of closed sessions for personnel purposes when it met to discuss the departure and $200,000 severance package of former Superintendent Lillie Cox. The Times-News filed a lawsuit to gain access.
Alamance-Burlington School System Superintendent Lillie Cox resigned suddently in May 2014 following a closed door meeting of four out of seven members of the ABSS Board of Education. She was given a taxpayer-funded $200,000 severance package and neither the board nor Cox gave an explanation for her departure. The Times-News in Burlington requested copies of the meeting minutes under the N.C. Public Records Act. The school system provided heavily redacted copies and cited the School Board Employee Privacy Act, which exempts a great deal of information about employees from the public records law.
The Times-News sued in October. In December, then-Special Superior Court Judge Lucy Inman granted a motion to dismiss made by the school board, which had claimed the records are covered by the statute covering school employees privacy. Inman is now a judge on the court of appeals. She did not take part in Monday’s arguments.
The newspaper appealed, and on Monday Chief Judge Linda McGee, along with Judges Robert N. Hunter, Jr. and Charles Dietz heard oral arguments. Monday’s discussion focused primarly on two key questions: 1. How should the Open Meetings Act and the Public Records Act interact with the School Board Employee Privacy Act? and 2. What is the proper interpretation of News & Observer v. Poole, a N.C. Supreme Court case that dealt with some similar questions.
The Open Meetings Law makes clear that minutes of closed sessions will be treated as public records subject to disclosure under the Public Records Act. But it also allows government bodies to withhold those minutes “so long as public inspection would frustrate the purpose of a closed session.” The school employee law – like similar laws for municipal, county and state employees – exempts much of the information contained in an employee’s personnel file from disclosure under the Public Records Act.
School board attorney Deborah Stagner argued that the personnel privacy exemption covers minutes of meetings for personnel purposes and that because there is no point where disclosure would not “frustrate the purpose” of those closed sessions, they remain off limits indefinitely.
“They will always remain closed,” Stagner said.
The newspaper’s attorney, John Bussian, and attorney Mark Prak, who argued as a friend of the court on behalf of the N.C. Association of Broadcasters and the N.C. Press Association, both said that the personnel statute does not override the openness requirement of the Open Meetings Law.
“The school board secrecy law doesn’t trump the Open Meetings Law,” Bussian said.
Judge Dietz asked several questions of the lawyers about how they saw the statutes interacting with each other, pushing both sides on potential negative outcomes if the court endorsed that particular lawyer’s point of view.
The discussion of News & Observer v. Poole focused on whether or not it requires an “in camera review” by a trial judge of the minutes to determine whether or not they are subject to disclosure. No judicial review occurred in this case, a point that seemed to frustrate Judge Hunter.
“How do we know?” Hunter asked when Stagner was making a point about the minutes in question being personnel matters. “We haven’t seen the minutes,” Hunter said.
In Poole, the News & Observer sued to get access to records collected by a special commission that was investigating improprieties within the N.C. State basketball team. The commission received records that had been collected by outside investigators, including the State Bureau of Investigation. The Supreme Court said that because the commission was not the employer of the basketball coaches whose behavior was being examined, nor had the employer – N.C. State – gathered the information, the commission could not rely on the State Employee Privacy Act to withhold the records.
The court also found that to determine whether or not a record was subject to the employee privacy exemption, a court must first consider who gathered the information and whether or not that entity was the employer. Second the court has to look at the specific information gathered and determine whether it is related to at least one of the employee’s job responsibilities.
And the Poole court found that to determine whether or not a disclosure would frustrate the purpose of a closed meeting, that a court should look at “time and content factors, allowing courts to tailor the scope of statutory protection in each case. Courts should ensure that the exception to the disclosure requirement should extend no further than necessary to protect ongoing efforts of a public body, respecting the policy against secrecy in government that underlies both the Public Records Act and the Open Meetings Law.”
In the Alamance-Burlington schools case, its not clear who gathered the information that is being withheld or whether it is relevant to Superintendant Cox’s job responsibilities because the case was dismissed without the judge conducting an in camera review.
Judge Dietz questioned both sets of attorneys Monday about whether an in camera review is necessary in every public records dispute over minutes of closed sessions for personnel purposes.
“I think it’s significant hat the Open Meetings Law refers to the Public Records Act,” Dietz said. “It says that minutes ‘shall be public records shall be public records within the meaning of the Public Records Law, … provided, however, that minutes or an account of a closed session … may be withheld from public inspection so long as public inspection would frustrate the purpose of a closed session.’
“Is that an instruction that courts on a case-by-case basis need to determine whether release would frustrate the purpose?” he asked.
Stagner argued that the personnel exemption is different from the discussion in the open meetings laws. Bussian argued that an in camera review is appropriate and should happen in this case.
Stagner also argued that Poole is a significantly different case because it involved a commission that did not employ the personnel who were being reviewed. The Alamance-Burlington Board of Education was clearly Cox’s employer.
“The minutes clealry fall within the definition of personnel records,” Stagner said.
Hunter also appeared frustrated that the rule Stagner was arguing for could keep a large government payout unexplained.
“I don’t understand how the expenditure of public funds can be considered a personnel matter,” Hunter said. “Is the $200,000 a personnel fact, and how it was calculated a personnel matter, such that taxpayers of Alamance County can’t know about it?”