Outer Banks newspaper prevails in public records case

by Amy Kingsley

The NC Court of Appeals unanimously upheld a decision forcing the town of Kitty Hawk to share pre-trial materials collected by its contracted attorneys with the Outer Banks Sentinel, ending the latest chapter in a three-year legal battle with the weekly newspaper.

In the decision, filed on Jan. 2, the three appellate judges determined that appraisals, engineering and demolition reports gathered as part of the town’s condemnation proceedings were, in fact, public records. Attorneys from the law firm Vandeventer Black had argued the materials and billing records were protected under attorney-client privilege.

The lawsuit started in 2004, after Outer Banks Sentinel reporter Angela Perez started inquiring about the town’s legal bills. Editor Sandy Semans later discovered that attorney’s fees for the town of 3,500 had topped $1 million for the last three years. Since Kitty Hawk is a small town, it contracted legal services to Vandeventer Black instead of having a staff attorney.

“A lot of the legal bills had to do with condemnation proceedings,” Semans said. “It was obvious there were some real issues about what they had done to these people.”

After initially denying the Sentinel’s request, the mayor and town council agreed to release court records with the information about pending litigation removed. When Semans received the documents, hundreds of the 460 pages were blacked out, she said.

David Ferrell, a partner at Vandeventer Black who represented the town, said he was disappointed in the court’s decision and said it might add to confusion about public records laws.

“The way this trial court approached this was not consistent with state law,” Ferrell said.

Ferrell argued that the pre-trial materials were the property of a private law firm, thus not subject to review under laws intended to make the workings of local government more transparent. Semans said the firm was, in essence, public because the mayor and town council retained it. Judge Barbara Jackson agreed with Semans, noting that allowing the firm to conceal documents related to government operations might set a dangerous precedent.

“Allowing defendants to prevail on their argument that these documents were the private property of the town attorney, and not property of the town itself, would be permitting the town to place documents such as these in the hands of a so-called independent contractor in order to escape the public records disclosure requirements,” she wrote.

The paper sought billing records in addition to other pre-trial materials, but the court did not rule on whether those were public documents because the town of Kitty Hawk already turned over those records. Ferrell said he was most disappointed that the court did not determine whether those were public records.

“Municipalities need to know how to deal with these requests,” he said. “As a rule we don’t disclose documents like that because the law tells us not to. A town like Kitty Hawk wants to be open, but they need to know what the law says.”

Semans said having the complete documents would allow Sentinel reporters to get to the bottom of why the town was spending so much to condemn oceanfront property. The decision also makes it clearer for other members of the public what kinds of pre-trial materials they should be able to examine. Semans said the town has been much more responsive to public records requests since they retained a new lawyer,

“This case kind of defines what is a work product and what belongs to the public,” she said. “It will stop municipalities and attorneys from trying to keep things from the public.”

The town has a month to decide whether they will appeal the decision to the NC Supreme Court. If they do not, the two groups will meet again in Dare County Superior Court to determine how to comply with the Appeals Court ruling.

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