In re McClatchy Co.

• Docket Number: 29A23
• Decision Date: 23 May 2024
• Citation: In re McClatchy Co., 900 S.E.2d 765 (N.C. 2024)
• Parties: In the MATTER OF: the MCCLATCHY COMPANY, LLC, d/b/a the News & Observer, Carolina Public Press, Inc. d/b/a Carolina Public Press; Capitol Broadcasting Company, Incorporated d/b/a WRAL-TV; Lee Enterprises, d/b/a The News & Record; Hearst Properties, Inc. d/b/a WXII; Gannett Co., Inc., d/b/a the Burlington Times News; Mackenzie Wilkes, John Norcross, and Grace Terry, of the Elon News Network
• Court: North Carolina Supreme Court

900 S.E.2d 765

In the MATTER OF: the MCCLATCHY COMPANY, LLC, d/b/a the News & Observer, Carolina Public Press, Inc. d/b/a Carolina Public Press; Capitol Broadcasting Company, Incorporated d/b/a WRAL-TV; Lee Enterprises, d/b/a The News & Record; Hearst Properties, Inc. d/b/a WXII; Gannett Co., Inc., d/b/a the Burlington Times News; Mackenzie Wilkes, John Norcross, and Grace Terry, of the Elon News Network

No. 29A23

Supreme Court of North Carolina.

Filed May 23, 2024

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 287 N.C. App. 126, 882 S.E.2d 364 (2022), vacating an order entered on 15 June 2021 by Judge Andrew H. Hanford in Superior Court, Alamance County, and remanding the case. Heard in the Supreme Court on 7 November 2023.

Stevens Martin Vaughn & Tadych, PLLC, by Michael J. Tadych, Karen M. Rabenau, Raleigh, Hugh Stevens, and Elizabeth J. Soja, for petitioner-appellants.

Envisage Law, by Anthony J. Biller and Adam P. Banks, Raleigh, for respondent-appellee.

ALLEN, Justice.

Petitioners obtained a court order granting their petition for copies of law enforcement recordings of a march that took place in Graham, North Carolina. Individuals who wish to receive copies of such law enforcement recordings must follow the procedures set out in N.C.G.S. § 132-1.4A. A divided panel of the Court of Appeals vacated the trial court’s order, holding that the trial court had failed to determine petitioners’ eligibility to request copies of the recordings under the statute. In re The McClatchy Co., 287 N.C. App. 126, 134–36, 882 S.E.2d 364 (2022). The Court of Appeals majority also held that the trial court had not understood that it could place conditions or restrictions on the release of the recordings. Id. at 135, 882 S.E.2d 364.

As explained below, anyone may seek copies of law enforcement recordings under the provision in N.C.G.S. § 132-1.4A invoked by petitioners, so the trial court had no reason to question their eligibility to proceed. Moreover, we do not accept the Graham Police Department’s argument to this Court that the statute required petitioners to file a civil action instead of a petition.

We agree with the Court of Appeals, however, that the trial court erroneously believed that it could not condition or restrict the release of the recordings. Accordingly, we affirm in part and reverse in part the deci- sion of the Court of Appeals and remand this case for further proceedings consistent with this opinion.

I. Background

On 31 October 2020, approximately 200 people took part in the "I Am Change" march in Graham, North Carolina. According to news reports, clashes occurred between marchers and law enforcement officers as officers attempted to clear a blocked intersection and disperse a crowd gathered at the Alamance County Historical Courthouse. The confrontations resulted in numerous arrests.

On 2 March 2021, petitioners—a group of media organizations and reporters—filed a petition in the Superior Court, Alamance County, seeking the "release of all law enforcement and other recordings leading up to, during[,] and after the ‘I am Change’ march … from the time the first contact was made with marchers, spectators or media … until the last member of law enforcement left the scene." The petition identified the Alamance County Sheriff’s Office (ACSO) and the Graham Police Department (GPD) as the law enforcement agencies with custody of the recordings. Petitioners served copies of the petition on the sheriff of Alamance County, the chief of the GPD, and the Alamance County district attorney.

The terms "release" and "disclosure" mean different things in N.C.G.S. § 132-1.4A, the statute that governs access to custodial law enforcement agency recordings (CLEAR). As defined by the statute, CLEAR include any "visual, audio, or visual and audio recording captured by a body-worn camera, a dashboard camera, or any other video or audio recording device operated by or on behalf of a law enforcement agency or law enforcement agency personnel when carrying out law enforcement responsibilities."¹ N.C.G.S. § 132-1.4A(a)(6) (2023). To release CLEAR is to "provide a copy of a recording." N.C.G.S. § 132-1.4A(a)(7). To disclose CLEAR is to "make a recording available for viewing or listening … at a time and location chosen by the custodial law enforcement agency." N.C.G.S. § 132-1.4A(a)(4); see also id. ("[Disclosure] does not include the release of a recording.").

Under subsection (c) of the CLEAR statute, the only people eligible to request disclosure are individuals whose images or voices are captured in the recordings or their personal representatives.² N.C.G.S. § 132-1.4A(c). Unless the recording depicts a death or serious bodily injury, no court order is necessary for a law enforcement agency to disclose CLEAR to an eligible person. N.C.G.S. § 132-1.4A(b1)–(b3), (c). On the other hand, with certain exceptions not relevant to this case, the CLEAR statute prohibits the release of CLEAR except pursuant to a court order.³ Subsection (f) of the statute authorizes individuals who are eligible for disclosure under subsection (c) to "petition the superior court in any county where any portion of the recording was made for an order releasing the recording." N.C.G.S. § 132-1.4A(f). More generally, subsection (g) allows "any person" requesting the release of CLEAR to "file an action in the superior court in any county where any portion of the recording was made for an order releasing the recording." N.C.G.S. § 132-1.4A(g).

In filing their petition for release, petitioners used a form created by the North Carolina Administrative Office of the Courts (AOC), form AOC-CV-270. They checked the box on the form indicating that they sought release under subsection (g) of the CLEAR statute. Petitioners also filed a memorandum of law outlining the legal basis for their petition.

On 15 March 2021, following a preliminary hearing, the trial court issued an order requiring the ACSO and the GPD to submit copies of the requested recordings to the court so that it could review them before the next hearing. The order further directed the head of each law enforcement agency "to give notice of the [p]etition and [the upcoming] hearing to any law enforcement personnel whose image or voice is in the recording." Finally, the order required the ACSO and the GPD to provide the court and petitioners’ legal counsel with "a list identifying those portions of the requested recordings to which law enforcement objects to release and all bases for those objections." The ACSO and the GPD complied with the order.

On 10 June 2021, the trial court conducted a hearing on the merits of the petition, Petitioners argued that (1) the media’s continued willingness to pursue the recordings testified to their ongoing newsworthiness; (2) the privacy interests at stake were minimal because the interactions between marchers and law enforcement officers took place in public; and (3) widespread media coverage of the march reduced the potential impact of the recordings on ongoing trials or investigations. The ACSO and the GPD urged the court to deny the petition, arguing among other things that (1) no compelling public interest supported the release of the recordings because nearly eight months had passed since the "I Am Change" march, rendering it no longer newsworthy; (2) other recordings of the march were widely available on social media; (3) petitioners’ request was overly broad; (4) release of the recordings could damage the reputations of persons arrested on camera; and (5) release could influence ongoing criminal proceedings against persons arrested at the march.

At the conclusion of the hearing, the trial court ordered the release of all recordings requested by petitioners. The court emphasized that it had reviewed the eight statutory standards that courts must consider when deciding whether to release CLEAR:

(1) Release is necessary to advance a compelling public interest.

(2) The recording contains information that is otherwise confidential or exempt from disclosure or release under State or federal law.

(3) The person requesting release is seeking to obtain evidence to determine legal issues in a current or potential court proceeding.

(4) Release would reveal information regarding a person that is of a highly sensitive personal nature.

(5) Release may harm the reputation or jeopardize the safety of a person.

(6) Release would create a serious threat to the fair, impartial, and orderly administration of justice.

(7) Confidentiality is necessary to protect either an active or inactive internal or criminal investigation or potential internal or criminal investigation.

(8) There is good cause shown to release all portions of a recording.

N.C.G.S. § 132-1.4A(g).

The trial court assessed the applicability of the eight standards to its decision in the following terms:

[No. 1,] That the release of the information is necessary to advance a compelling public interest. The Court finds that there is a compelling public interest in the accountability and transparency of law enforcement officers and that this factor weighs in favor of release.

No. 2, The recording contains information that is otherwise confidential or exempt from disclosure or release under state or federal law. This Court finds this factor is not relevant and does not impact the Court’s decision.

No. 3, The person requesting release is seeking to obtain evidence to determine legal issues in a current or potential court proceeding. The Court finds this factor is not relevant and does not impact this decision.

No. 4, Release would reveal information regarding a person that is of a highly sensitive and personal nature. This Court finds that this factor weighs against release.

No. 5, That release may harm the reputation or jeopardize the safety of a person. This Court finds this factor also to weigh against release.

No. 6, That release would create a serious threat to the...