North Carolina Court of Appeals Addresses Public Records, Closed Session and "Personnel Matters"
In The Times News Publishing Co. v. The Alamance-Burlington Bd. of Education, No. COA15-99 (July 21, 2015), the Court of Appeals considered the intersection between the State's Open Meetings Laws (N.C.G.S. 143-318.9, et seq.) and Public Records Act (N.C.G.S. 132.1, et seq.) in the context of minutes from a "closed or executive session" of a board of education resulting in the termination of a school superintendent.
In October 2013, the superintendent of the Alamance-Burlington County Schools agreed to a new, four-year employment contract approved by defendant school board.
Just seven months later, defendant school board held a closed meeting wherein the superintendent abruptly resigned and the board approved a $200,000 severance payment.
Plaintiff newspaper sought access to the minutes from the closed session, which was denied.
Plaintiff newspaper filed a lawsuit to obtain the minutes from the closed session. The trial court dismissed the lawsuit, and plaintiff newspaper appealed.
Citing extensively to News and Observer Pub. Co. v. Poole, 330 N.C. 465 (1992), the Court of Appeals notes the Supreme Court's conclusion as to the interplay between the two State laws: "The Open Meetings Law 'provides an exception to the Public Records Act for minutes, which would ordinarily be public records, so long as public inspection would frustrate the purpose of the executive session.'"
Applying this, the Court of Appeals determined that minutes of a closed or executive session in which a government employee was terminated and awarded a severance payment -- the so-called and commonly-used "personnel matter" defense to publication -- are not "categorically exempt from public disclosure". The Court of Appeals explained the distinction between necessary private "personnel information", on the one hand, and the critical transparency of governmental deliberation, on the other hand:
"[C]ore personnel information such as the details of work performance and the reasons for an employee’s departure will remain permanently exempt from disclosure. But other aspects of the board’s discussion in the closed session, including the board’s own political and policy considerations, are not protected from disclosure."
The Court of Appeals sent the matter back to the trial court so that it may conduct an in camera (that is, a private) review of the minutes, which was not done. Specifically, the Court of Appeals directed the trial court to review with an eye toward balancing the interests, to "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."
Why It Matters
Ultimately, the minutes may remain out of the public reach. The important thing to remember is that (1) the trial court must conduct an in camera review of the records sought and denied before refusing public access pursuant to State law, and (2) matters that are expressly excepted from the reach of public record laws can quickly become public record, even derivatively, if the local political body is not careful as to how it proceeds.