Appeals Court Schedules Alamance School Records Hearing | Eastern North Carolina Now

    Publisher's note: The author of this post is Dan E. Way, who is an associate editor for the Carolina Journal, John Hood Publisher.

Report about fired superintendent kept secret by school board

    RALEIGH     A three-judge panel of the state Court of Appeals has scheduled oral arguments for April 6 in a high-profile case pitting the public's access to official records against government attempts to suppress information from public view.

    The outcome could have major implications for the public's right to know in North Carolina.

    The Times-News newspaper of Burlington sued the Alamance-Burlington Board of Education for copies of closed meeting minutes at which a report was released about questionable activities by then-Superintendent Lillie Cox in preparation for a vote to fire her. Cox subsequently resigned when the board went into open session.

    A measure of the importance of this case is the powerful interests filing friends-of-the-court briefs. The North Carolina Association of Broadcasters and the North Carolina Press Association lined up behind the Times-News. The North Carolina School Boards Association supports the defendant school board.

    "In the lore of North Carolina appeals rulings on open government law, this is potentially a very big case. The battle lines are drawn," said John Bussian, a media attorney representing the Times-News, who already obtained a first-of-its-kind Supreme Court order directing the Appeals Court to expedite the case as required under public records law.

    "When you have a combination of the North Carolina Association of Broadcasters — essentially every radio and television outlet in the state — allied with the Press Association — which is most of the major print publications and website publications in the state — arguing in favor of access, that tells you something," Bussian said.

    The decision rendered by the three-judge panel — Chief Judge Linda McGee, Judge Robert N. Hunter, and Judge Richard Dietz — will decide whether public records laws and court precedents trump state personnel confidentiality exemptions.

    Much of the lawsuit's framework is built around the landmark News & Observer v. Poole Commission case. The two parties interpret the outcome and intent of that Supreme Court decision very differently.

    The Supreme Court ruled unanimously in 1992 that an investigatory report compiled about misbehavior in the N.C. State University basketball program under coach Jim Valvano was a public record that should be disclosed even though it was a personnel matter discussed at a closed session.

    The justices ruled that exceptions to public disclosure are no longer valid once the need for secrecy has elapsed.

    Bussian argues the circumstances of the Times-News case mirror those in the Poole case. In both instances, an investigatory report was compiled, it was discussed at closed meetings, and a decision was made. Once the vote occurred, there was no longer a need for secrecy.

    The defendants argue the cases are not analogous.

    Writing for the North Carolina School Boards Association, staff attorney Christine Scheef said, "Despite Dr. Cox's status as a former employee, her personnel information, including the issues discussed during the May 30, 2014, closed session, remained confidential. The personnel statutes do not address 'the need for secrecy;' instead, they compel the local board of education, except under limited circumstances not present here, to maintain the confidentiality of the closed session discussion."

    "All of the cases that have addressed the part of the open meetings law that requires a school board and every other government agency to produce minutes of closed session secret discussions say that there is a fuse on the length of time those minutes can be kept secret from the public, and there is no case that says that the fuse doesn't exist when it comes to school board personnel," Bussian said.

    "The fuse exists for everybody," he said.

    "There are some parallels," between the Poole and the Times-News cases, said Hugh Stevens, a Raleigh-based attorney who argued the Poole case for the News & Observer before the Supreme Court.

    "The Poole Commission case is always helpful because that's where one of the big principles laid down ... by the courts was that unless there is a very specific and explicit exception or exemption to the public records law, then the law's supposed to be read so as to enhance public access," Stevens said.

    "I think in this [Times-News] case, that proper reading would make these public records," Stevens said. "I think the school board should lose on that, and I hope they do."

    As the media organizations and transparency advocates observe Sunshine Week this week, designated as a time to educate the public about the need for government openness and the dangers of government secrecy, Bussian said the Times-News case is exemplary.

    "It's important on a real micro-level because in Alamance County they spent $300,000 or thereabouts of public money to get rid of a superintendent whose contract had only been renewed two months before, and then they wouldn't tell the public why they did it," he said.

    "It just doesn't add up. All it does is just create suspicion when you don't come clean with the records, and you don't come clean with the public about why that level of government action is taken, and why you spent that kind of tax money to do it," Bussian said.

    "On a macro-level ... access to government is what makes our system different and better than any other government system in the world," Bussian said. "There's a long tradition of the public having the right to know in this country, and it starts with access to local government, and even school board meetings and records."

    Stevens said North Carolina presents "a mixed bag" of government transparency and compliance with open meetings and public records laws. That varies from city to town to county, usually depending on the attitudes of professional staff and elected officials.

    The State Treasurer's Office, Department of Insurance, and "a couple of the other departments are generally compliant" with the law, he said. "There's a lot of complaining about foot-dragging, or slow responses on the part of people ranging from the University to the Governor's Office to particularly the Department of Health and Human Services."

    "I think generally across the nation there is absolutely a sense that it's becoming harder to obtain access to government records, and in some cases to attend open meetings, or the meetings that should be open in any case," said Adam Marshall, the Jack Nelson Legal Fellow at the Washington, D.C.-based Reporters Committee for Freedom of the Press.

    "I feel like we're seeing a lot more exemptions, claims all over the places. We're seeing abnormally high fees being imposed by state agencies, and we're seeing a lot of delay when it comes to accessing records," Marshall said.

    That is "incredibly frustrating" for those seeking records because often the information being sought is time-sensitive. If records are not produced in a timely fashion, that "really undercuts [the public's] ability to know what's going on, and to contact their representatives if they think that something needs to be done," Marshall said.