A new case from the North Carolina Court of Appeals, Gray Media, Inc. v. Town of Matthews, centers on personnel records under G.S. 160A-168. While this case does not significantly shift the legal landscape, Matthews clarifies and reinforces some important points surrounding personnel records and the application of the personnel privacy statutes.
Facts of the Case
A town contracted with an independent agency to investigate whether a town police officer used excessive force in a particular arrest. After concluding its investigation, the agency sent a report (“ISS Report”) to the town. Based in part on the agency’s findings, the town terminated the officer, quoting several portions of the ISS Report in its termination letter. A media organization submitted a public records request for several documents related to the officer’s termination, including the ISS Report and communications between the town and its counsel.
The town withheld the ISS Report as a confidential personnel record but produced several other records, including a partially redacted email between the town and its counsel (“the email”). The email was redacted to conceal the names of other officers who might have body camera footage relevant to the investigation. The media organization filed a lawsuit against the town pursuant to G.S. 132-9, moving to compel the ISS Report and the email and for judgment on the pleadings, attaching copies of the officer’s termination letter and the email to its motion. The town in turn moved for summary judgment and for an in camera review of the contested records. The trial court ordered the town to produce an unredacted version of the email and to release certain portions of the ISS Report. The town appealed, arguing that the trial court abused its discretion in ordering release of the ISS Report.
The Personnel Privacy Statute
The statute at the center of this dispute is G.S. 160A-168. Under subsection (a) of that statute, city employees’ personnel file information is confidential—that is, its disclosure is prohibited. In fact, the penalty for improper disclosure under the statute is a Class 3 misdemeanor. Personnel file information includes “any information in any form gathered by the city with respect to that employee.” The statute provides a non-exhaustive list of such records, relating to the employee’s “application, selection or nonselection, performance, promotions, demotions, transfers, suspension and other disciplinary actions, evaluation forms, leave, salary, and termination of employment.”
Despite that broad rule, the statute contains several exceptions. The first is in subsection (b), which lists twelve pieces of city employee information that must be disclosed upon request. The second is in subsection (c), which either allows or entitles certain individuals to access materials that would otherwise be confidential under the general rule. Matthews particularly focuses on subsection (c)(4), which allows any individual to examine a personnel file with a court order. To add another layer of complexity, subsection (c1) empowers records custodians to withhold certain personnel file information even from individuals otherwise entitled to access it under subsection (c).
Holdings
1. The trial court lacked authority to order the release of the ISS Report.
As a threshold matter, the ISS Report’s status as a personnel record was not at issue on appeal. The trial court agreed with the town that the ISS Report was a confidential personnel record under G.S. 160A-168, and the plaintiff did not challenge this finding on appeal. As a result, the Court of Appeals presumed the ISS Report was a confidential personnel file record that the plaintiff media organization had no automatic right to access. Under G.S. 160A-168(c)(4), though, any individual may examine confidential personnel file records pursuant to a court order. The trial court invoked this authority to order the town to release certain portions of the ISS Report.
In assessing the trial court’s order, the Court of Appeals noted that (c)(4) permits only examination, not release. Indeed, this is what the Court of Appeals held in Release of Silk Plant Forest Citizen Review Committee’s Report and Appendices v. Barker. There,the North Carolina Court of Appeals reflected on the legislature’s use of the word “examine” as opposed to “copy” in the statute. While the information deemed public under the statute “…can not only be examined, [but] can be copied, and consequently disseminated to the general public…,” the non-public information “…can only be ‘examine[d]’ when so ordered by the trial court.” 216 N.C. App. 268, 273 (2011). The Matthews Court consequently concluded that the trial court exceeded its authority under subsection (c)(4) by ordering release, particularly to a news organization where the risk of mass publication is significant.
The Court of Appeals did not consider whether the trial court should have ordered any disclosure of the ISS Report in the first place because the ISS Report was not included in the record on appeal. However, the court did observe that some portions of the ISS Report became public records when they were included in the officer’s termination letter. Why would quoting portions of the ISS Report in the officer’s termination letter convert those portions to public records?
While the court did not explain its reasoning, there are at least two possible explanations. First, under G.S. 160A-168(b)(11), written notices of dismissal that set forth the acts and omissions leading to the dismissal are public. Arguably, the termination letter could qualify as a written notice of dismissal and citations to the ISS Report could have described the acts and omissions leading to the dismissal. Second, the plaintiff included the letter, which quoted the ISS Report, with its motions. At that point, the letter became a court record, available to the public. While the city might withhold or redact its own copy of the ISS Report, it would have no authority to require the court to do so for a record in its custody. News & Observer Pub. Co. v. Poole, 330 N.C. 465, 473 (1992)(“We hold, simply, that…when the SBI submitted its investigative reports to the Commission, they became Commission records. As such they are subject to the Public Records Act and must be disclosed to the same extent…under that law.”). The Matthews Court cited Poole, so it was likely relying on this second basis. Whatever the reasoning, the court’s statement applied only to the quoted portions of the ISS Report. Placing some portions of the ISS Report in the public domain did not appear to eliminate confidentiality as to the rest of the report.
2. Subsection (c1)(2) is a not a means to order disclosure.
Under G.S. 160A-168(c1), custodians can withhold certain types of confidential personnel information even from those otherwise entitled to access it under subsection (c). One such piece of exempt information allows custodians to withhold investigative reports or memoranda regarding an employee until the investigation has concluded with no action taken or until the conclusion of any criminal action. G.S. 160A-168(c1)(2). In Matthews, the trial court used G.S. 160A-168(c1)(2) as an additional basis to order release of the ISS Report. However, the Court of Appeals points out that (c1)(2) actually falls within the town’s authority to withhold records, and the town did not assert (c1)(2) as a defense. Moreover, there was no argument that the ISS Report pertained to a criminal investigation as is required for (c1)(2) to apply. In so holding, the Matthews Court clarified that the (c1) exemptions are not an avenue for a court to order disclosure, but rather, a series of defenses against disclosure for custodians.
3. Public employee information is public even if referencing or contained in other confidential records.
Finally, the Court of Appeals affirmed the trial court’s order requiring the town to produce the email without redactions. The town had redacted the names of certain other officers with additional, relevant body camera footage, arguing that G.S. 160A-168 entitles requesters “…to the name of every municipal employee, [but] not every document with a municipal employee’s name on it notwithstanding any other statutory privilege.”
The Court rejected this argument, explaining, “the release of a city employee’s name located in another city employee’s personnel file, does not necessarily reveal any confidential personnel information …; rather it releases only information that is already … ‘a matter of public record.’” In short, the fact that the officers’ body camera footage might be statutorily protected did not impact the public nature of the officers’ names under G.S. 160A-168(b). This conclusion makes sense in the context of G.S. 160A-168, which applies “[n]otwithstanding the provisions of G.S. 132‑6 or any other general law or local act concerning access to public records…”.
Conclusion
The Matthews case reinforces prior case law interpreting G.S. 160A-168. Matthews deals specifically with the city employee confidentiality statute, but its logic likely extends to several other personnel file statutes with nearly identical language, such as G.S. 153A-98 for county employees.
