               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA15-99

                                 Filed: 21 July 2015

Alamance County, No. 14 CVS 2033

THE TIMES NEWS PUBLISHING COMPANY d/b/a Times-News, Plaintiff,

              v.

THE ALAMANCE-BURLINGTON BOARD OF EDUCATION, d/b/a Alamance-
Burlington Schools or The Alamance-Burlington School System; & DR. WILLIAM
HARRISON, in his Capacity as Interim Superintendent of Alamance-Burlington
School System, Defendants.


        Appeal by plaintiff from order entered 9 December 2014 by Judge Lucy N.

Inman in Alamance County Superior Court. Heard in the Court of Appeals 6 April

2015.


        The Bussian Law Firm, by John A. Bussian, for plaintiff-appellant.

        Tharrington Smith, LLP, by Deborah R. Stagner, Neal A. Ramee, and Rebecca
        Fleishman, for defendants-appellees.

        Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, by Mark J. Prak, Julia
        C. Ambrose, and Timothy G. Nelson, for amicus curiae North Carolina
        Association of Broadcasters and North Carolina Press Association.

        Christine T. Scheef and Allison B. Schafer for amicus curiae North Carolina
        School Boards Association.


        DIETZ, Judge.


        In October 2013, the superintendent of the Alamance-Burlington County

Schools agreed to a new, four-year employment contract approved by the local school
          THE TIMES NEWS PUBLISHING CO. V. THE ALAMANCE-BURLINGTON
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                                  Opinion of the Court



board. Just seven months later, the school board held a closed meeting where the

superintendent abruptly resigned and the board approved a $200,000 severance

payment. The Times News Publishing Company then filed a request for the meeting

minutes of the closed session so that it could report on the school board’s handling of

the superintendent’s departure.

      In particular, the Times News sought to learn why the school board paid

$200,000 in taxpayer money to a departing school employee just months after that

employee signed a contract agreeing to stay for four more years. But the school board

refused to hand over the minutes, arguing that the closed meeting concerned a

“personnel matter” and therefore the meeting minutes were totally exempt from our

State’s public record and open meeting laws.

      For the reasons discussed below, we reject the school board’s argument that

the closed meeting minutes are categorically exempt from public disclosure because

they concern a personnel matter. Under Supreme Court precedent, a trial court

presented with an Open Meetings Law claim concerning closed meeting minutes

must review the minutes in camera—meaning in private, not in open court—and

“tailor the scope of statutory protection in each case” based on the contents of the

minutes and their importance to the public. News & Observer Pub. Co. v. Poole, 330

N.C. 465, 480, 412 S.E.2d 7, 16 (1992). As the Supreme Court explained, “[c]ourts

should ensure that the exception to the disclosure requirement should extend no


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further than necessary to protect ongoing efforts of a public body, respecting the

policy against secrecy in government that underlies both the Public Records Act and

the Open Meetings Law.” Id.

      As explained below, under the test established in Poole, core personnel

information such as the details of work performance and the reasons for an

employee’s departure will remain permanently exempt from disclosure. But other

aspects of the board’s discussion in the closed session, including the board’s own

political and policy considerations, are not protected from disclosure. On remand, the

trial court must review the minutes and determine which information is exempt from

disclosure and which should be disclosed to the public. Accordingly, we remand this

case for an in camera review of the meeting minutes consistent with this opinion.

                          Facts and Procedural History

      Dr. Lillie Cox became the Superintendent of the Alamance-Burlington School

System in 2011. In October 2013, Dr. Cox and the Alamance-Burlington Board of

Education agreed to extend Dr. Cox’s contract to 2017. Seven months later, on 30

May 2014, Dr. Cox abruptly resigned from her position after a closed meeting of four

of the seven members of the school board. The school board agreed to pay $200,000

as a severance payment and to pay out $22,000 in unused vacation pay.

      On 6 October 2014, Plaintiff Times News Publishing Company made a written

request to the school board for access to the meeting minutes “for purposes of


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inspection, examination, and copying pursuant to the Public Records Act.” The Times

News specifically requested the “production of the unredacted minutes of the

Alamance-Burlington Board of Education’s specially called meeting or meetings,

including any closed sessions in or about May of 2014 relating to the continued

employment of the then current Superintendent of Schools.” The school board did

not produce the unredacted meeting minutes.

      On 24 October 2014, the Times News filed a complaint and application for an

order compelling disclosure of the unredacted meeting minutes, alleging that the

school board violated the Open Meetings Law and Public Records Act by refusing to

produce the minutes. The school board filed a motion to dismiss and answer on 19

November 2014. On 1 December 2014, the trial court held a hearing on the motion

to dismiss. The trial court granted the motion, concluding “that the records sought

by plaintiffs are not public records subject to disclosure under the Public Records

Act,” and therefore the Times News “failed to state a claim for which relief can be

granted.” The Times News timely appealed.

                                      Analysis

      The crux of this case is the interplay between various state laws enacted to

ensure public access to government records.

      The first of these laws, and the most important for purposes of this case, is the

Open Meetings Law. The Open Meetings Law generally requires that “each official


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meeting of a public body shall be open to the public, and any person is entitled to

attend such meeting.” N.C. Gen. Stat. § 143-318.10(a) (2013). The law permits

“closed sessions” of a public body only in limited circumstances, including any

meeting to discuss “the qualifications, competence, performance, character, [or]

fitness, . . . of an individual public officer or employee.” N.C. Gen. Stat. § 143-

318.11(a)(6).

      The law also requires that “[e]very public body shall keep full and accurate

minutes of all official meetings, including any closed sessions.” N.C. Gen. Stat. § 143-

318.10(e). When a public body meets in a closed session,

                it shall keep a general account of the closed session so that
                a person not in attendance would have a reasonable
                understanding of what transpired. Such accounts may be
                a written narrative, or video or audio recordings. Such
                minutes and accounts shall be public records within the
                meaning of the Public Records Law, G.S. 132-1 et seq.;
                provided, however, that minutes or an account of a closed
                session conducted in compliance with G.S. 143-318.11 may
                be withheld from public inspection so long as public
                inspection would frustrate the purpose of a closed session.

Id. (emphasis added). Thus, the Open Meetings Law provides (1) that minutes (or a

recording) must be taken during closed sessions; (2) that those minutes “shall be

public records within the meaning of the Public Records Law”; and (3) that those

minutes “may be withheld from public inspection so long as public inspection would

frustrate the purpose of a closed session.” Id.



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      The second relevant law is the Public Records Act, which generally provides

that “public records and public information” compiled by state and local governments

“are the property of the people” and should be open to inspection by the public. N.C.

Gen. Stat. § 132-1(b) (2013). Like the Open Meetings Law, the Public Records Act

has exceptions. Among those exceptions is Section 115C-319 of the General Statutes,

which states that “[p]ersonnel files of employees of local boards of education, former

employees of local boards of education, or applicants for employment with local boards

of education shall not be subject to inspection and examination” under the Public

Records Act. N.C. Gen. Stat. § 115C-319 (2013). The term “personnel file” is defined,

in relevant part, as “any information gathered by the local board of education”

relating to “the individual’s application, selection or nonselection, promotion,

demotion, transfer, leave, salary, suspension, performance evaluation, disciplinary

action, or termination of employment wherever located or in whatever form.” Id.

(emphasis added). Thus, the Public Records Act, and its accompanying limitation in

Section 115C-319, categorically prohibit public disclosure of certain personnel

information of current and former school employees.

      The central issue in this case is how these two laws interact. The school board

contends that the minutes of the closed meeting are a “personnel file” because they

contain “information gathered by the local board of education” concerning the

superintendent’s “termination of employment” and related personnel matters. Thus,


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the school board argues that the minutes are categorically exempt from public

disclosure under N.C. Gen. Stat. § 115C-319.

      The Times News contends that the minutes of the closed meeting, whether

they are a “personnel file” or not, are governed by the Open Meetings Law, which

provides that minutes may be withheld from the public only “so long as public

inspection would frustrate the purpose of a closed session.” N.C. Gen. Stat. § 143-

318.10(e). Thus, the Times News argues that the trial court was required to conduct

an in camera review of the minutes and to assess whether disclosure would frustrate

the purpose of the closed session.

      Our Court has never addressed this precise issue, but we find guidance in the

Supreme Court’s decision in News & Observer Pub. Co. v. Poole, 330 N.C. 465, 412

S.E.2d 7 (1992). The plaintiffs in Poole sought (among other things) meeting minutes

from a special commission formed to investigate “alleged improprieties relating to the

men’s basketball team at North Carolina State University.” Id. at 470, 412 S.E.2d at

10. Although the Supreme Court held that the commission was not subject to the

Open Meetings Law, the opinion addressed the interplay between that law and the

Public Records Act. Specifically, the Supreme Court held that the Open Meetings

Law “provides an exception to the Public Records Act for minutes, which would

ordinarily be public records, so long as public inspection would frustrate the purpose

of the executive session.” Id. at 480, 412 S.E.2d at 16 (internal quotation marks


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omitted).1 The Supreme Court then held that assessing whether disclosure would

frustrate the purpose of a closed session “requires consideration of time and content

factors, allowing courts to tailor the scope of statutory protection in each case.” Id.

(emphasis added). The Supreme Court concluded with an instruction that lower

courts “should ensure that the exception to the disclosure requirement should extend

no further than necessary to protect ongoing efforts of a public body, respecting the

policy against secrecy in government that underlies both the Public Records Act and

the Open Meetings Law.” Id.

       Thus, our Supreme Court has established that the determination of whether

information may be withheld under the Open Meetings Law because it would

“frustrate the purpose of the closed session” is not a determination that can be made

unilaterally by the public body that created the minutes.                 Instead, where the

withholding of information is challenged in court, the court must review those

minutes in camera—meaning in private, without revealing the contents in open

court—using the balancing test from Poole quoted above.

       But, importantly, in rejecting the Defendants’ argument that disclosure of the

commission’s closed session minutes could chill “free and frank decision-making” by

government agencies, the Supreme Court in Poole noted that this concern “must yield


       1 The General Assembly moved the relevant statutory language from Section 143-318.11(d) to
Section 143-318.10(e) two years after Poole, but the language itself did not change. See 1993 N.C.
Sess. Laws 181.

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to the decision of the General Assembly, which enacted several specific exceptions to

the Public Records Act, none of which permanently protects a deliberative process like

that of the Commission after the process has ceased.” Id. at 481, 412 S.E.2d at 16

(emphasis added). In other words, the Supreme Court acknowledged that there are

categories of “exceptions to the Public Records Act” that are permanent—meaning

that passage of time is not a factor in whether that information should be released to

the public. But the Supreme Court concluded that the information discussed by the

special commission in Poole was not covered by any of those permanent statutory

exceptions because the Commission was not the employer of the state employees

mentioned in the meeting minutes. As a result, the minutes “d[id] not meet the

definition of ‘personnel file’ information . . . because the information was not

‘gathered’ by the employer state agency.” Id. at 483, 412 S.E.2d at 18.

      In light of this language from Poole, we hold that N.C. Gen. Stat. § 115C-319—

which states that the “personnel files of employees of local boards of education, former

employees of local boards of education, or applicants for employment with local boards

of education shall not be subject to inspection and examination” under the Public

Records Act—creates the type of permanent exception identified in Poole. If school

personnel files were intended to remain confidential only while the individual

remained employed by the school district, the General Assembly would not have

applied the exception to “former employees.” Id. As it is written, the exception for


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personnel files is permanent and does not expire with the passage of time. Thus,

under Poole, when a public body enters a closed session to discuss personnel

information that falls within the scope of N.C. Gen. Stat. § 115C-319, disclosure of

that personnel information always would frustrate the purpose of the closed session

and thus may be withheld under N.C. Gen. Stat. § 143-318.10(e).

       But that does not mean that all contents of closed session minutes in personnel

cases are beyond disclosure. When a public body meets—particularly one made up of

elected officials—the discussion of a personnel matter often could include political

and policy considerations broader than the “core” personnel information described in

Section 115C-319.     Moreover, as we explained above, when the withholding is

challenged in court, it is for the trial court, not the school board, to assess what is and

is not subject to disclosure under this legal test.

       In light of our holding today, we must remand this case to the trial court to

conduct an in camera review of the meeting minutes consistent with this opinion and

our Supreme Court’s decision in Poole. On remand, the trial court should separate

core personnel information from other, related information that is subject to

disclosure, keeping in mind the Supreme Court’s admonition in Poole that “[c]ourts

should ensure that the exception to the disclosure requirement should extend no

further than necessary to protect ongoing efforts of a public body, respecting the




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policy against secrecy in government that underlies both the Public Records Act and

the Open Meetings Law.” Poole, 330 N.C. at 480, 412 S.E.2d at 16.2

           In closing, we note that under the “personnel file” exception to the Public

Records Act, many of the specific facts about the superintendent’s departure may

remain permanently hidden from the public—perhaps an unintended outcome for a

law meant to limit secrecy in government. But we are an error-correcting body, not

a policy-making or law-making one. What we can say is that, even under the law as

it is written today, there may be some information from the school board’s closed

session that is subject to public disclosure. Accordingly, we remand this case to the

trial court to conduct an in camera review of the contents of the closed meeting

minutes.

                                           Conclusion

       We reverse and remand this case for the trial court to conduct an in camera

review of the requested meeting minutes consistent with this opinion.

       REVERSED AND REMANDED.

       Chief Judge McGEE and Judge HUNTER, JR. concur.



       2  We anticipate that there will be times when the trial court’s determination following in
camera review is disputed by the public body seeking to avoid disclosure. Because the court system
cannot un-ring the bell once information has been publicly disclosed, the trial court (or this Court,
where necessary) should not hesitate to stay the disclosure order pending appeal by the aggrieved
party. The General Assembly has instructed that these actions “shall be accorded priority by the trial
and appellate courts,” N.C. Gen. Stat. § 132-9(a), and thus the appeals process will be resolved far
faster than ordinary litigation in the appellate courts.

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