NEW HANOVER COUNTY, NC (WECT) - It's public information. But even for the media, gaining access to records and proceedings from public officials using public resources and public money is often much harder than you would expect.
As part of our annual Sunshine Week project, WECT and news outlets across the country work to shed light on freedom of information issues and government transparency, and why those things are so important to the community at large.
This year, we requested minutes from closed session meetings of 4 public agencies: The City of Wilmington, UNCW Board of Trustees, New Hanover County Board of Commissioners, and New Hanover County Schools. What we received in response varied dramatically.
New Hanover County Schools
New Hanover County Schools denied our request in full.
"The [school] district's attorney has informed me that the minutes of the closed sessions that you requested contain confidential information and cannot be released," NHCS Spokeswoman Valita Quattlebaum wrote in response to our request.
When pressed for the precise legal exemptions that allowed NHCS to withhold these minutes, Quattlebaum cited North Carolina Closed Session Meeting Law. Specifically, that the law allows for closed session meetings for things like personnel discussions and issues covered by attorney/client privilege.
Additionally, state law allows confidential discussion about discipline or school assignment of individual students. There are also FERPA laws, which are federal statutes protecting the privacy of students.
While it is clear there are legally allowable reasons for NHCS to hold closed session meetings, it is not clear that the law gives them blanket privilege to withhold the minutes from those meetings. In fact, this specific issue has been challenged in the courts, and the NC Court of Appeals ruled in favor of an Alamance County newspaper seeking disclosure of closed session minutes, following the termination of that district's school superintendent.
In the case of Times-News Publishing Company vs. Alamance Burlington Board of Education, the court wrote the following in its July 2015 decision:
"[W]e 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."
The courts say it is a balancing act to protect privacy rights of public employees with the right of the public to know how public agencies are conducting public business.
"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,'" the Court of Appeals wrote, quoting a previous ruling from the NC Supreme Court when the News & Observer had filed a lawsuit in 1992 to get records related to an investigation of the NC State Men's Basketball Team.
"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," the Court of Appeals concluded in the Alamance Burlington Board of Education case before remanding the case to the trial court to review the closed session minutes in question.
We have made NHCS aware of the court ruling regarding the closed session minutes of another public school district in the state, and have asked them to reconsider their decision to deny our request for the closed session minutes in full.
New Hanover County Board of Commissioners
New Hanover County Board of Commissioners only reported holding one closed session meeting in all of last year, and they quickly provided the minutes for that meeting. The minutes say the meeting was called to discuss a personnel matter, specifically a request for a raise by Register of Deeds Tammy Beasley. She asked for her salary to be raised from $80,500 to $91,000, which Beasley said was in line with similarly sized counties.
"A brief discussion was held by the Board concerning the request," the closed session minutes say. "County Manager Coudriet stated that this is a reasonable request, it is in line with her responsibilities and is recommending support of this amount…. After further discussion, the consensus of the Board is to award Ms. Beasley an annual salary of $85,500."
The single closed session meeting by the Board of Commissioners in 2017 lasted 40 minutes.
UNCW Board of Trustees
The UNCW Board of Trustees provided partially-redacted minutes for all of its closed sessions. The most recent meeting was on December 11.
"At the request of the Chair, General Counsel Scherer reviewed recent developments in regard to investigations and potential litigation involving [rest of the sentence is redacted]," the minutes say. Other topics discussed during closed session that day include recommendations for an honorary award to be presented during the May Commencement ceremonies, and the status of exploring options for new student housing.
The Board also met in closed session on January 20, April 3, April 21, May 3, July 28, and October 27, 2017, to discuss topics ranging from salary adjustments to new hires and tenure. They also discussed naming recommendations for places on campus but specific details are blacked out.
Wilmington City Council
Wilmington City Council is the only agency that has yet to provide a final response to our request. We have followed up with City Spokeswoman Malissa Talbert several times since first submitting our request for closed session minutes in early January, but she was unable to provide an estimated date of completion.
Last year, WECT requested closed session minutes from the Town of Oak Island, following the abrupt firing of the Town Manager. Tim Holloman was fired in the wake of an embarrassing incident at the firehouse where an allegedly intoxicated volunteer firefighter fell down the fire pole and seriously injured himself.
Holloman says a town council member was immediately made aware of the incident and assured Holloman that a formal investigation was not needed. When more details about the accident came to light months later, Holloman decided a closer look was, indeed, warranted.
Hollomon investigated and brought his findings to the Town Council, including a recommendation for disciplinary action for some of the Town employees involved in the firehouse incident. Instead, Town Council fired Holloman. Holloman felt he was treated unfairly, especially because the people actually involved in the firehouse incident kept their jobs.
After our public records request, and a vote by council, the town emailed us an extremely general recap of what happened at the closed session meetings leading up to Holloman's termination. But an open government expert said the minutes were improper, and the Town of Oak Island violated the law by failing to disclose proper minutes.
Jonathan Jones, an attorney and the director of the NC Open Government Coalition, said the law allows sensitive personnel information to be redacted from those minutes, but still requires a full accounting be recorded and disclosed. As an example, he cited the same Alamance County superintendent case referenced earlier in this story. After the Court of Appeals verdict, Alamance county released 45 pages of heavily redacted minutes from the two-hour closed session meeting discussing the potential termination of the superintendent.
After being questioned by Jones, Oak Island Town Attorney Brian Edes explained to us that the brief recap provided to us was an attempt to balance protecting the sensitive personnel information being discussed at those meetings, with the right of the public to know what happened.
He said if a heavily redacted version of the full minutes would more fully comply with the law, they were happy to do that moving forward, but the end result of what we would actually be able to see would be very similar to what appeared in their half-page recap.