COA Decides Public Records Act Case Involving Litigation Records

In a case decided today, the COA dealt with Public Records Act requests concerning litigation records. The case confirms the breadth of the Public Records Act. Recall that two years ago, in McCormick v. Hanson Aggregates Southeast, Inc. (2004), the COA held that a city attorney's work product may be subject to disclosure pursuant to the Public Records Act, since the General Assembly has not created a work product exception to the Act's disclosure requirements.

Today's case dealt with requests by The Outer Banks Sentinel to the Town of Kitty Hawk concerning oceanfront condemnation litigation. The requests concerned records made by or at the direction of the law firm that was appointed to serve as the town attorney.

The first category of documents concerned billing statements sent to the town by the law firm. The trial court ruled that the billing statements presumptively public records under the Act. The COA declined to address that ruling, holding that the issue was moot.

The second category of documents concerned contracts that the town's attorney made on behalf of the town in connection with the oceanfront condemnation cases--e.g., engineering and surveying contracts with third-parties. The trial court ruled that such contracts are public records and ordered that copies of them must be produced to the Sentinel. On appeal the town argued that the contracts weren't public records because, although the town paid for them, they were never in the town's possession: They were created by or on behalf of the law firm serving as town attorney, and they were kept by the law firm and never delivered to the town. The COA rejected the argument, holding that the law firm, in its capacity as town attorney, was a public officer of the town and thus constituted an agency of NC government subject to the Public Records Act with respect to its dealings with the town. The COA further held that the contracts in the possession of the town attorney belonged to its client, i.e., the town, and thus were public records under the Act, because the town ultimately paid for them. As a matter of policy, the COA concluded that if the town's argument were accepted, "there would be nothing to prevent municipalities and other governmental agencies from skirting the public records disclosure requirements simply by hiring independent contractors to perform governmental tasks and to have them retain all documents in conjunction with the performance of those tasks that municipalities and agencies choose to shield from public scrutiny."