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N.C. appeals court says town must release public records

By The Associated Press
01.04.07

RALEIGH, N.C. — The Town of Kitty Hawk must give a local newspaper more documents related to the town's condemnation of oceanfront land, the state Court of Appeals ruled Jan. 2.

The unanimous decision upheld a lower court ruling that sided with the Outer Banks Sentinel, which argued the documents were public record even though they were held by the town's contract attorney.

"The fact that they hired a local firm to be their counsel, as opposed to hiring someone with an office in town hall ... there is no distinction anymore," said Mike Tadych, a lawyer representing the newspaper.

David Farrell, an attorney representing Kitty Hawk, said he didn't know whether the town planned to appeal to the state Supreme Court.

The Sentinel, based in coastal Dare County, wanted to know why the town council had voted to add $100,000 to its legal budget. The newspaper asked Kitty Hawk's elected leaders to review and copy billing records for legal fees from the town's contract attorney during 2003 and 2004.

The town council said the records weren't public because they contained privileged communication between the attorney and the town about ongoing or potential litigation.

The council agreed to release the billing records voluntarily in January 2006, but not before the newspaper sued for the information along with copies of contracts, appraisals and other engineering documents related to the condemnations.

Managing Editor Sandy Semans said the Sentinel wanted to know whether property owners were compensated fairly by the town, which wanted to condemn old oceanfront homes either for a local park or for a berm to protect often-flooded state Highway 12.

The town said the contract and appraisal information wasn't public, either, because the records were kept by an independent law firm and were never in the town's custody.

A Superior Court judge agreed with the newspaper and ordered the town to hand over all the paperwork. The town appealed, but the state appeals court sided with the newspaper.

Judge Barbara Jackson, writing for the appeals court, said the town's argument would provide an enormous loophole and enable governments to skirt public-record laws by hiring independent contractors to do work and keep records of their performance.

The appeals court didn't rule on whether the billing records for the town's legal fees were covered by public-records law, because the town eventually released that information to the newspaper.

"It's going to lead to confusion as to how to deal with this situation," Farrell said of the ruling.

In another media-related ruling issued Jan. 2, a separate three-judge appellate panel upheld the dismissal of a defamation lawsuit filed by a former Durham County commissioner against a Durham, N.C., newspaper.

Former Commissioner Joe Bowser alleged that an article in The Herald-Sun of Durham was false and exposed him to ridicule because it stated Bowser had "attempted to pressure" a county employee to help his friend. The information came from a letter written by an assistant county health director about her meeting with Bowser.

Judge Sanford Steelman, writing for the court, said the newspaper's article gave a "rational interpretation" of the allegations contained in the letter.


Update
N.C. town must pay newspaper's legal fees in records dispute
Judge orders Kitty Hawk officials to pay Outer Banks Sentinel $75,000, says town's attorneys used 'totally unwarranted' tactics in defending case. 06.21.07

Related

N.C. appeals court won't order release of hospital records

Judges overturn lower court decision that had given newspaper expanded access to public facility's employee-compensation records. 08.17.05

Judge dismisses records lawsuit against N.C. governor
Raleigh News & Observer had asked for documents relating to Gov. Mike Easley's clemency decisions. 10.27.05

Wis. appeals court orders 3 towns to allow access to databases
Municipalities violated state's open-records law by handing off requests for property-assessment databases to the contractors that compiled them. 01.04.07

N.C. appeals court sides with newspapers in open-records fight
Unanimous ruling finds governments can't simply place document in personnel file and call it exempt from state's public-records law. 07.06.07

Open records

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