News and Observer Pub. Co., Inc. v. Poole, 269PA90

• Decision Date: 10 January 1992
• Docket Number: No. 269PA90,269PA90
• Citation: 330 N.C. 465,412 S.E.2d 7
• Court: North Carolina Supreme Court
• Parties: , 71 Ed. Law Rep. 1200, 19 Media L. Rep. 1873 The NEWS AND OBSERVER PUBLISHING COMPANY, INC.; the North Carolina First Amendment Foundation, Inc.; and the North Carolina Press Association v. Samuel H. POOLE; Dean W. Colvard; C.C. Cameron; William A. Klopman and Hellon Senter.

Page 7

412 S.E.2d 7

330 N.C. 465, 71 Ed. Law Rep. 1200,

19 Media L. Rep. 1873

The NEWS AND OBSERVER PUBLISHING COMPANY, INC.; the North

Carolina First Amendment Foundation, Inc.; and the North Carolina Press Association v. Samuel H. POOLE; Dean W. Colvard; C.C. Cameron; William

A. Klopman and Hellon Senter.

No. 269PA90.

Supreme Court of North Carolina.

Jan. 10, 1992.

On discretionary review prior to a determination by the Court of Appeals, pursuant to N.C.G.S. § 7A-31, from a judgment entered by Barnette, J., at the 18 April 1990 Civil Session of Superior Court, Wake County, ordering defendants to disclose documents for public inspection. Defendants appeal. Plaintiffs cross-appeal the trial court's denial of a motion to amend their complaint. Heard in the Supreme Court 12 November 1990.

Everett, Gaskins, Hancock & Stevens by Hugh Stevens, Raleigh, for plaintiffs-appellees.

Lacy H. Thornburg, Atty. Gen. by Andrew A. Vanore, Jr., Chief Deputy Atty. Gen., and K.D. Sturgis, Asst. Atty. Gen., Raleigh, for defendants-appellants.

EXUM, Chief Justice.

This action is brought under the Public Records Act, N.C.G.S. Chapter 132, and seeks to compel defendants to disclose for public inspection certain written materials. ¹ These materials were compiled on behalf of a commission appointed by the president of the University of North Carolina system of higher education. The Commission's purpose was to investigate and report on certain alleged improprieties relating to the men's basketball team at North Carolina State University (NCSU), one of the system's component universities. Defendant Poole was chairman of the Commission, which became popularly known as the "Poole Commission," and which we will refer to as the Commission. Defendants Colvard, Cameron and Klopman were members of the Commission; and defendant Senter assisted the Commission in its work.

The records sought to be disclosed are investigative reports prepared for the Commission by special agents of the State Bureau of Investigation (SBI), Commission minutes, and draft reports prepared by individual Commission members.

Defendants concede that the Commission is a state agency and that the records sought, except for the investigative SBI reports, are public records as these terms are defined by the Public Records Act, N.C.G.S. § 132-1 (1991). ² They resist disclosure, nevertheless, on the ground that the records sought, other than the SBI reports, are protected by certain statutory and public policy exceptions to the Public Records Law. They contend the SBI reports were not public records because of the exemption to the Public Records Act contained in N.C.G.S. § 114-15. The trial court concluded none of the statutes relied on by defendants protects the records from disclosure. It ordered disclosure of all the records. The question before us is the correctness of this decision. We conclude the decision is essentially correct but needs modification. We, therefore, modify and affirm the trial court's judgment. We affirm the trial court's denial of plaintiffs' motion to amend their complaint.

I.

The facts are essentially not in dispute. In January 1989 C.D. Spangler, Jr., President of the University of North Carolina On 26 July 1989 Frank A. Daniels, Jr., publisher of The News and Observer, wrote Spangler requesting that all documents made or received by the Poole Commission be made available for public inspection as provided by the Public Records Law. Spangler responded that he did not possess the records and referred Daniels to Poole. Daniels wrote to Poole requesting disclosure of the documents. Poole, through Chief Deputy Attorney General Andrew A. Vanore, counsel for the Commission, declined to disclose any of the documents. On 23 October 1989 defendant Poole did disclose his preliminary report.

system of higher education (UNC) appointed the Commission members named above. The Commission, using SBI agents, conducted its investigation between January and August 1989.

On 23 October 1989 plaintiffs filed the action now before us, alleging in a verified complaint that defendants' refusal to permit access to the documents in question violated Section 6 of Public Records Act, N.C.G.S. § 132-6 (1991). ³ Plaintiffs prayed that the trial court order defendants to make the documents available for inspection and copying, as provided by that statute.

Defendants opposed the requested order, pleading in answer several statutory exceptions to the Public Records Act: N.C.G.S. § 114-15 (SBI records); N.C.G.S. § 126-22 (1987) (state employee personnel records); N.C.G.S. § 132-1.1 (1991) (attorney communications); and N.C.G.S. § 143-318.11(d) (Supp.1991) (part of the Open Meetings Law). Defendants also pleaded certain "public policy" considerations in defense of their refusal to disclose.

On 2 May 1990 plaintiffs moved to amend their complaint to add Lacy H. Thornburg, Attorney General of North Carolina, as a defendant. The motion was denied.

At the hearing on the merits the trial court considered the pleadings, depositions, affidavits, and exhibits. Based upon these materials the trial court made extensive findings of fact and conclusions of law. The pertinent facts found together with certain other undisputed pertinent facts of record will be summarized in our discussion of the legal issues brought forward on appeal.

II.

Defendants first contend the trial court erroneously concluded that the SBI investigative reports were public records. For the reasons explained below, we hold the SBI investigative reports became public records subject to the Public Records Law when the SBI submitted them to and they became a part of the records of the Commission.

A.

During its organizational meetings the Commission determined it would need assistance in conducting its investigation. After much discussion and consultation with counsel, the Commission ultimately decided to employ SBI special agents to assist its investigation. Upon the Commission's request, the Attorney General directed the SBI to assign agents to assist the Commission. The SBI assigned three agents.

The SBI agents interviewed approximately 160 people and summarized the interviews in written reports which, with attachments, they submitted to the Commission. After the agents submitted their reports, William Dowdy, chief investigative agent for the SBI, who worked on the investigation, forwarded copies of all the materials gathered and produced by the agents to Wake County District Attorney C. Colon Willoughby in the event they might contain evidence of criminal misconduct. Willoughby concluded the information did not merit criminal prosecution.

Commission members treated the SBI reports and attachments as confidential. Near the investigation's end, however, two UNC officials who were not on the Commission, University Vice Presidents Arthur Padilla and Raymond Dawson, were allowed to review all Commission records, including the investigative reports. Poole, as custodian of the records, allowed the inspection.

B.

The Public Records Act, N.C.G.S. § 132-6, provides:

Every person having custody of public records shall permit them to be inspected and examined at reasonable times and ... shall furnish certified copies thereof on payment of fees prescribed by law.

Defendants claim this provision has no application to the SBI investigative reports because N.C.G.S. § 114-15 provides in part:

All records and evidence collected and compiled by the Director of the Bureau and his assistants shall not be considered public records within the meaning of G.S. § 132-1, and following....

The trial court concluded that the Commission's investigation, although conducted by SBI agents, was not of a type specifically authorized by section 114-15. The trial court then held:

The provision of G.S. 114-15 concerning the non-public status of "records and evidence collected and compiled" by the S.B.I. is directed primarily toward the records of criminal investigations, and in any event extends no further than the records of investigations which are specifically authorized by G.S. 114-15. Therefore, since the investigation in question was not specifically authorized by G.S. 114-15, or by any other statutory provision, the records compiled on behalf of the Commission by the S.B.I. agents do not fall under the exemption, and are public records as defined by G.S. 132.1. Accordingly, they must be disclosed.

We do not reach the question whether the SBI investigation was authorized. We hold, simply, that whether the investigation was authorized or not, 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 that other Commission materials must be disclosed under that law.

In News & Observer v. State ex rel. Starling, 312 N.C. 276, 281, 322 S.E.2d 133, 137 (1984), this Court held that N.C.G.S. § 114-15 exempted from the Public Records Act records of a criminal investigation conducted by the SBI at the request of a district attorney. The records sought there resulted from an investigation expressly authorized by section 114-15. Plaintiffs attempt to distinguish Starling. They argue that the scope of the exemptive provision in section 114-15 does not reach the investigative materials sought in the case sub judice, because these materials are not the product of an investigation enumerated or authorized by section 114-15. Plaintiffs further argue that even if the exemption extended to records of all SBI investigations authorized by statute, it would not extend to the materials here, because the SBI investigation on behalf of the Commission was not expressly authorized by any statute. The trial court agreed with these arguments. We think Starling is distinguishable, but for other reasons.

Plaintiffs do not seek disclosure of investigative reports in the possession of the SBI. They seek disclosure of...