Riggs writes ruling favoring WBTV in records dispute with Charlotte | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    One of new state Supreme Court Justice Allison Riggs' last actions as a state Appeals Court judge was a ruling favoring WBTV in its public records dispute with the city of Charlotte.

    Riggs wrote the opinion for a unanimous three-judge panel favoring the television station's owner, Gray Media. Appellate judges on Tuesday reversed a trial court decision favoring the city.

    "In this appeal, Gray Media, LLC ("Gray Media") asks this Court to consider whether records held by a third party are subject to the Public Records Act," Riggs wrote. "The trial court declared the issue moot and granted summary judgment to Defendant, City of Charlotte ("the City"), because the City voluntarily produced the documents."


    Charlotte turned over the survey information 16 months after WBTV's initial request. Yet appellate judges ruled the legal issue was not moot. They declared the records were public records. They also ruled that Gray Media was "entitled to reasonable attorney's fees."

    The dispute involved surveys Charlotte City Council members filled out in 2020 as part of a city contract with consultant Ernst and Young. When a WBTV reporter sought access to survey information, the city responded that it could not comply with his public records request. Ernst and Young maintained possession of the surveys and responses.

    "At the center of this dispute is whether the requested documents are, in fact, public records subject to public disclosure when they were solely held by a third party," Riggs wrote. "Put another way, can a government agency place public records solely in the possession of a third party or otherwise ensure that only the third party has immediate access to what would undoubtedly be public records if in the possession of the government agency and then assert that the documents are not subject to disclosure under the Public Records Act? We hold that it cannot."

    Riggs and colleagues rejected the city's argument that the survey responses could not be public records because council members used hyperlinks to access the surveys on Ernst and Young's computers.

    "To accept the argument that a hyperlinked survey instead of an attached survey removes the document from the universe of public records requires us to read the statutory language much too narrowly," Riggs wrote. "Such a reading would defeat the purpose of the statute, creating a clear path to hide huge swaths of governmental work from public scrutiny."

    "Instead, we note that the statute includes broad language including 'all documents ... electronic data-processing records ... regardless of physical form or characteristics,'" she added. "Further, the Public Records Act has been repeatedly interpreted to provide liberal access to public records."

    Charlotte also lost on its argument that it never had custody of the requested records. "In this case, the Contract is unequivocal that the surveys and responses - i.e., Contract data as defined in the Contract - are exclusively owned by the City," Riggs explained. "The contractual language plainly indicates that EY must 'promptly provide the Contract data to the City in machine-readable format upon the City's request at any time while the contract is in effect or within three years from when the contract terminates.'"

    "Therefore, the City maintained custody through constructive possession of the records and was required under the Public Records Act to have exercised its right to demand the records from EY when Gray Media made the public records request," she added.


    "[W]e hold that the trial court erred in entering summary judgment for the City," Riggs weote. "Records created or received by a government entity, even when stored or held by a third party, are subject to disclosure under the Public Records Act and the government agency must exercise its right to possession of the records to allow the requestor to inspect or examine the records."

    Judges Valerie Zachary and Allegra Collins joined Riggs' opinion.