NEWS MEDIA UPDATE · NORTH CAROLINA · Freedom of Information · Jan. 11, 2007
Law firm serving as town attorney subject to records law
Jan. 11, 2007 · A private law firm appointed as town attorney must comply with state open records laws, the state appeals court ruled this month in upholding an order that contracts related to town’s condemnation of waterfront properties must be released to a North Carolina newspaper.
In 2004, the Dare County-based Outer Banks Sentinel requested detailed billing records from a private law firm appointed as town attorney by Kitty Hawk’s town council. The newspaper also sought contracts, appraisals and other engineering documents for work performed for the town in connection with the condemnation of several waterfront properties.
The town claimed those documents were not public records because they were held by the contract law firm, Vandeventer Black, not the town. The town also claimed the records were exempt from disclosure because of attorney-client privilege.
A trial judge sided with the newspaper in 2005 and ordered the release of all contracts related to the condemnation, except for one document.
In upholding the lower court’s decision, the three appeals court judges dismissed the town’s argument that because the documents were never in the town’s possession, they were not public records.
The judges also rejected the argument that the firm acted as an independent contractor, not a government official, noting that the firm was appointed as town attorney under North Carolina law, and therefore its lawyers were public officers “subject to the Public Records Act with respect to its dealings with the Town.”
The town argued the contracts should be considered the private property and work product of the law firm. But the court noted that at the time the lawsuit was filed, the legislature had not created an exception for an attorney’s work product in the public records law and said allowing that argument would allow towns an easy way to evade public records laws.
“If an argument such as this were to prevail there would be nothing to prevent municipalities and other government 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 chose to shield from public scrutiny,” Judge Barbara Jackson wrote for the court.
The legislature has since changed the public records laws to exempt an attorney’s work product from disclosure, but the new law does not apply to the case because the lawsuit predates the 2005 change.
The Court of Appeals also refused to determine whether the detailed attorney billing statements were public records, saying the issue was moot because the statements had already been released.
Mike Tadych, an attorney for the newspaper, said the town was essentially arguing that records that would unquestionably be public had the town employed an in-house attorney could be withheld because the town had appointed a public law firm to assume those duties.
“I think this case takes away that distinction,” he said.
Tadych said the decision “clarifies a pretty important point of contention” and should aid journalists who have had trouble obtaining records from other towns whose city attorneys are in private practice.
“That is an ongoing problem, and it tends to be a larger problem in the more rural areas,” he said.
(Womack Newspapers Inc. v. Town of Kitty Hawk, Media Counsel: Hugh Stevens and Michael Tadych, Everett, Gaskins, Hancock & Stevens LLP, Raleigh, N.C.) — RG