In a decision that promises to have a substantial impact for counties and municipalities struggling to reconcile North Carolina’s Open Meetings Law and its Public Records Act, the Court of Appeals yesterday dropped a compelling footnote providing guidance to trial courts confronted with this issue in the future.
In Times News Publishing Co. v. Alamance-Burlington Bd. of Ed., the Court was confronted with a situation in which minutes of a public body’s closed session were sought pursuant to the Public Records Act and the public body objected to disclosure of such minutes because disclosure would “frustrate the purpose of the closed session” pursuant to the Open Meetings Law. The requesting party challenged the withholding of the minutes and asked the trial court to compel their production. The trial court denied the request to compel the disclosure of the minutes. The Court of Appeals reversed and remanded the case, concluding that if withholding of such minutes is challenged in court, the trial court must review the minutes in camera to ensure that the withholding extends “no further than is necessary to protect the ongoing efforts of a public body, respecting the policy against secrecy in government that underlies both the Public Records Act and Open Meetings Law.” (quoting News & Observer Pub. Co. v. Poole, 330 N.C. 465, 480, 412 S.E.2d 7, 16 (1992)). In other words, the determination of whether the information may properly be withheld is not one that can be “made unilaterally by the public body that created the minutes.”
While this holding is likely to cause some anxiety among counties and municipalities, the Court of Appeals recognized this and sought to mitigate concerns by providing, in a footnote:
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.
From the standpoint of someone who represents a number of towns and municipalities, this is a welcome anticipatory and advisory note from the Court. Moreover, it is encouraging to see the Court going beyond the four corners of a case and proactively including direction for the courts for issues likely to arise as a result of the decision in the case on appeal.