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N.C. appeals court sides with newspapers in open-records fight

By The Associated Press
07.06.07

RALEIGH, N.C. — In a public-records victory for a pair of community newspapers, the state Court of Appeals on July 3 reversed part of a trial court ruling that allowed Columbus County officials to withhold a letter sought by the papers.

A three-judge panel unanimously ruled that governments can't simply file a document in a personnel file and call it protected from the state's public-records law.

"Whether a document is part of a 'personnel file' ... depends upon the nature of the document and not upon where the document has been filed," the panel wrote in The News Reporter Co., Inc. v. Columbus County.

The twice-weekly News-Reporter and weekly Tabor-Loris Tribune, which overlap in coverage area, filed a lawsuit in 2005 after county officials refused to release a letter related to hiring a new medical director for the county, which borders South Carolina in southeastern North Carolina.

In September of that year, the county Board of Commissioners was considering whether to renew a contract with its medical director, Dr. Fred Obrecht.

Emergency services director Ronald Hayes sent a letter to the board and its personnel committee discussing his experience working with Obrecht. The letter recommended the county hire Dr. Peggy Barnhill as its medical director.

On Sept. 19, 2005, the board announced it was staying with Obrecht, according to court documents. A month later, the county denied a request from the newspapers for a copy of Hayes' letter, arguing it was exempt from public-records law because it was in Hayes' personnel file and dealt with his performance as a county employee.

The newspapers then sued Columbus County and county manager Jim Varner, asking the court to declare the letter a public record.

A trial court sided with the county in February 2006, but the newspaper appealed.

On July 3, state Court of Appeals judges ruled that portions of the letter constituted a public record.

"Based upon our review of the letter, we hold that the trial court erred in concluding that the entire letter was protected from disclosure under exceptions to the Public Records Act as applicable to counties," Judge Martha A. Geer wrote, with Judges Barbara Jackson and Eric L. Levinson in concurrence.

"While portions of the letter are protected from disclosure, those portions can be redacted, and the remainder — falling within the Public Records Act — provided to plaintiffs."

The appeals court rejected the county's argument that because Varner chose to place the letter in Hayes' personnel file, it was protected from the public.

The judges said such reasoning could result in governments transforming a newspaper clipping that addressed a government employee's performance into a confidential record by filing it in an official personnel file.

"The argument that it's put in or checked in the personnel file is not unusual," said Amanda Martin, an attorney for the North Carolina Press Association. "This is certainly not the first or last time I've heard of it."

Newspaper officials said on July 3 that the ruling could protect public-records access statewide.

"I guess the best thing that came out of this was the concept that you can't place a document in a personnel file and that allows it to be shielded from the public's view," said Les T. High, editor of the News-Reporter, a paper based in Whiteville with a circulation of about 10,000.

Officials at the Tabor-Loris Tribune, based in Tabor City, believed the issue was clear from the beginning, said Deuce Niven, associate publisher and editor of the paper, which has a circulation of around 4,000 in southern Columbus County and northern Horry County in South Carolina.

Varner, the county manager, said July 3 that an attorney representing the county needed to determine which portions of the letter could be released under the ruling.

"I'm just sorry it got to this situation," Varner said. "It's been a long time coming, and whatever the court rules we'll be glad to abide by."


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