Appeal by plaintiff Thomas A. McCormick, in his official
capacity as City Attorney for the City of Raleigh, and appeal by
defendant from judgment filed 19 November 2002 by Judge Howard E.
Manning, Jr. in Wake County Superior Court. Heard in the Court of
Appeals 26 February 2004.
City of Raleigh Attorney Thomas A. McCormick, by Associate
City Attorney Dorothy K. Leapley, for plaintiff-appellant.
Kennedy Covington Lobdell & Hickman, L.L.P., by A. Lee
Hogewood, III, for defendant-appellant.
BRYANT, Judge.
Thomas A. McCormick (the City Attorney), in his official
capacity as City Attorney for the City of Raleigh, and Hanson
Aggregates Southeast, Inc. (defendant) separately appeal a judgment
filed 19 November 2002 ordering the partial disclosure of certain
documents compiled by the City Attorney.
The City Attorney filed a complaint dated 26 June 2002
seeking a declaratory judgment from the trial court that certain
documents defendant sought to obtain via a public records request
on 17 June 2002 were not subject to disclosure. Defendant's public
records request sought production of “all 'public records' within
the meaning of G.S. § 132-1 that are in the possession or under the
control of [the City Attorney's] department and that relate to the
property [owned by defendant] located at 5333 Duraleigh Rd.,
Raleigh and commonly referred to as the Crabtree Quarry.” The City
Attorney alleged the documents (1) were protected by the rules
governing attorney-client privilege and work product and (2) didnot qualify as public records based on the criminal investigation
exception in N.C. Gen. Stat. § 132-1.4. Background information
contained in the complaint included the issuance of a 23 April 2002
order for compliance by the City of Raleigh Zoning Inspector
Supervisor directing defendant “to cease removing dirt and borrow
from one of the tracts owned by [defendant].” Defendant had
appealed the order, and the appeal was pending before the Raleigh
Board of Adjustment at the time of the filing of the declaratory
judgment action. The City of Raleigh was to appear at the Board of
Adjustment appellate hearing to offer evidence in support of the
zoning inspector's order.
On 19 July 2002, defendant filed its answer and counterclaim
(1) confirming the City Attorney's refusal to produce the requested
documents and (2) petitioning the trial court for an order
compelling the City Attorney to grant access to the requested
records for inspection. The City Attorney moved for judgment on
the pleadings on 21 August 2002.
In its 19 November 2002 judgment, the trial court found:
After reviewing the pleadings, as well as the
relevant statutes and decisions, it appears to
the Court that the City Attorney attempts to
withhold records, utilizing the Criminal
Investigation exception (G.S. [§] 132-1.4(3)),
created from 1985 to the present, even though
it is undisputed that the City has never
instituted criminal charges against
[defendant] or its predecessors for any
alleged violation from 1985 through the
present day. A zoning ordinance violation is
a violation of a local ordinance and is a
misdemeanor punishable under the criminal law.
G.S. [§] 132-1.4(3)[,] (4) and G.S. [§] 14-
4(b).
A misdemeanor must be prosecuted within
two years under G.S. § 15-1, and at this point
any alleged zoning ordinance violations are nolonger prosecutable to the extent that they
occurred more than two years ago.
(Emphasis in original). The trial court concluded that the City of
Raleigh and the City Attorney qualified as a “public law
enforcement agency” responsible for investigating, preventing, or
solving violations of law as defined in N.C. Gen. Stat. § 132-
1.4(b)(3). The trial court further concluded that the records
withheld by the City Attorney pursuant to section 132-1.4 were “not
public records as defined in the Public Records Law.” In
exercising its discretion under N.C. Gen. Stat. § 132-1.4(a),
however, the trial court ordered that those records “withheld
solely on the basis of G.S. § 132-1.4 . . . which were prepared
more than two years prior to October 31, 2002 be produced to
[defendant] for inspection and copying.” In addition, the trial
court ordered the production of “all work product or materials that
were withheld by [the City Attorney] based on the attorney-client
privilege that are dated more than three years before October 31,
2002.” (Emphasis in original). Conversely, the trial court denied
production of documents: (1) related to any investigation of
[defendant's] activities by the City of Raleigh and dated October
31, 2000 or later” and (2) that “are work product or based on the
statutory attorney-client privilege to the extent that those
documents are dated October 31, 1999 or later.” Based on its
ruling, the trial court dismissed defendant's counterclaim as moot.
______________________
The issues are whether: (I) a declaratory judgment action in
this matter was improper; (II) the criminal investigation exception
to the Public Records Act applies to the City Attorney's Officeand, if so, was properly applied by the trial court; and (III) the
trial court erred in its interpretation of the Public Records Act
with respect to privileged material and the City Attorney's work
product.
I
Declaratory Judgment Action
[1] We first address defendant's argument that the Public
Records Act was not designed to allow a government entity to file
for a declaratory judgment, thereby forcing the party making the
public records request into litigation when it has not yet sought
to compel discovery through the courts. See N.C.G.S. § 132-9(a)
(2003) (“[a]ny person who is denied access to public records for
purposes of inspection and examination, or who is denied copies of
public records, may apply to the appropriate division of the
General Court of Justice for an order compelling disclosure or
copying”). North Carolina law is silent on the question of whether
a government agency may bring a declaratory judgment action under
these circumstances. However, we find the following California
Supreme Court holding instructive:
Permitting a public agency to circumvent
the established special statutory procedure by
filing an ordinary declaratory relief action
against a person who has not yet initiated
litigation would eliminate statutory
protections and incentives for members of the
public in seeking disclosure of public
records, require them to defend civil actions
they otherwise might not have commenced, and
discourage them from requesting records
pursuant to the Act, thus frustrating the
Legislature's purpose of furthering the
fundamental right of every person . . . to
have prompt access to information in the
possession of public agencies. Therefore, we
also conclude that the superior court abusedits discretion in granting declaratory relief
in the action initiated by the city . . . and
that the court instead should have sustained
petitioner's demurrer to the city's complaint.
Filarsky v. Superior Court, 28 Cal. 4th 419, 423-24, 49 P.3d 194,
195 (2002).
The North Carolina Public Records Act clearly gives the public
a right to access records compiled by government agencies. See
News and Observer Publ'g Co. v. Poole, 330 N.C. 465, 475, 412
S.E.2d 7, 13 (1992) (“'the legislature intended to provide that, as
a general rule, the public would have liberal access to public
records'”) (quoting News and Observer v. State, 312 N.C. 276, 281,
322 S.E.2d 133, 137 (1984)); N.C.G.S. § 132-1(b) (2003) (the public
records compiled by the agencies of North Carolina government “are
the property of the people”). “The Public Records Act permits
public access to all public records in an agency's possession
'unless either the agency or the record is specifically exempted
from the statute's mandate.'” Gannett Pacific Corp. v. N.C. State
Bureau of Investigation, 164 N.C. App. 154, 156, --- S.E.2d ---,
--- 2004 N.C. App. LEXIS 693, at *3-4 (2004) (citing Times-News
Publishing Co. v. State of North Carolina, 124 N.C. App. 175, 177,
474 S.E.2d 450, 452 (1996)). Further, the Public Records Act does
not appear to allow a government entity to bring a declaratory
judgment action; only the person making the public records request
is entitled to initiate judicial action to seek enforcement of its
request. See N.C.G.S. § 132-9(a) (2003) (“[a]ny person who is
denied access to public records for purposes of inspection and
examination, or who is denied copies of public records, may apply
to the appropriate division of the General Court of Justice for anorder compelling disclosure or copying”). We therefore hold, based
on the Public Records Act and the policy consideration for
disclosure under the act which are very similar to those noted by
the Court in Filarsky, that the use of a declaratory judgment
action in the instant case was improper.
However, even in the absence of the City Attorney's
declaratory judgment action, the merits of this case would have
reached the trial court since defendant counterclaimed to compel
disclosure. See Jennette Fruit v. Seafare Corp., 75 N.C. App. 478,
482, 331 S.E.2d 305, 307 (1985) (“a counterclaim survives the
dismissal of the plaintiff's original claim”). Thus, we feel
compelled to address the trial court's ruling on the merits, as the
trial court would undoubtedly enter identical findings and
conclusions upon a reversal of the declaratory judgment action in
conjunction with a remand by this Court on defendant's counterclaim
(previously dismissed as moot).
II
Criminal Investigation Exception
Both sides to this litigation take issue with the trial
court's application of the criminal investigation exception to the
materials withheld by the City Attorney. Defendant contends the
City Attorney does not qualify as a “public law enforcement agency”
under the statute, whereas the City Attorney takes issue with the
trial court's application of the two-year statute of limitations
for misdemeanors and contends the materials were further protected
by Chapter 15A.
N.C. Gen. Stat. § 132-1.4 provides for the protection ofcriminal investigations and intelligence information and states in
pertinent part:
(a) Records of criminal investigations
conducted by public law enforcement agencies
or records of criminal intelligence
information compiled by public law enforcement
agencies are not public records as defined by
G.S. 132-1. Records of criminal
investigations conducted by public law
enforcement agencies or records of criminal
intelligence information may be released by
order of a court of competent jurisdiction.[
(See footnote 1)
]
(b) As used in this section:
(1) “Records of criminal investigations”
means all records or any information
that pertains to a person or group
of persons that is compiled by
public law enforcement agencies for
the purpose of attempting to prevent
or solve violations of the law,
including information derived from
witnesses, laboratory tests,
surveillance, investigators,
confidential informants,
photographs, and measurements.
(2) “Records of criminal intelligence
information” means records or
information that pertain to a person
or group of persons that is compiled
by a public law enforcement agency
in an effort to anticipate, prevent,
or monitor possible violations of
the law.
(3) “Public law enforcement agency”
means a municipal police department,
a county police department, a
sheriff's department, a company
police agency commissioned by the
Attorney General pursuant to G.S.
74E-1, et seq., and any State or
local agency, force, department, or
unit responsible for investigating,
preventing, or solving violations of
the law.
(4) “Violations of the law” means crimes
and offenses that are prosecutablein the criminal courts in this State
or the United States and infractions
as defined in G.S. 14-3.1.
N.C.G.S. § 132-1.4(a)-(b) (2003).
A
Public Law Enforcement Agency
[2] The City Attorney's Office thus qualifies as a “public law
enforcement agency” for purposes of the criminal investigation
exception if it carries the “responsib[ility] for investigating,
preventing, or solving violations of the law.”
(See footnote 2)
N.C.G.S. § 132-
1.4(b)(3) (2003). Because the statute applies to all “crimes and
offenses that are prosecutable in the criminal courts in this State
or the United States and infractions as defined in G.S. 14-3.1,”
violations of zoning ordinances qualify as “violations of the law.”
N.C.G.S. §§ 132-1.4(b)(4), 14-4 (2003) (violations of local
ordinances punishable as misdemeanors); David M. Lawrence, Public
Records Law for North Carolina Local Governments 108 (Institute of
Government 1997) [hereinafter Public Records] (“if violation of a
statute, ordinance, or regulation can cause the violator to be
answerable in a criminal proceeding or in an infraction proceeding,
it is a violation of the law as defined in G.S. 132-1.4”). As the
City Attorney's Office is responsible for investigating,
preventing, and solving zoning violations, see Raleigh City Charter
§ 5.6 (the City Attorney has the duty “to prosecute and defend all
suits-at-law or in equity in which the City of Raleigh may become
the plaintiff or defendant”) and § 10-2152(4) (granting criminalenforcement powers over misdemeanors and infractions), it qualifies
as a “public law enforcement agency” under section 132-1.4, see
Public Records 108 (“any organizational unit within a county or
city that is responsible for enforcement of a statute, ordinance,
or regulation that carries misdemeanor or infraction penalties is
capable of generating records that are covered by the statute”).
B
Continuing Investigation
[3] Having ruled that the criminal investigation exception to
the Public Records Act is applicable to investigations conducted by
the City Attorney's Office, we now turn to the City Attorney's
contention that the trial court erred in ordering the production of
those records “withheld solely on the basis of G.S. § 132-1.4 . . .
which were prepared more than two years prior to October 31, 2002.”
Specifically, the City Attorney argues that, in doing so, the trial
court failed to consider whether production of the material could
“compromise ongoing or future investigations.”
As is clear from the plain words of the statute, the criminal
investigation exception does not apply solely to ongoing violations
of the law. The statute also speaks to “attempt[s] to prevent
. . . violations of the law,” N.C.G.S. § 132-1.4(b)(1), (3) (2003),
and “effort[s] to anticipate . . . or monitor possible violations
of the law,” N.C.G.S. § 132-1.4(b)(2) (2003). The statute thus
contemplates situations involving investigative reports compiled
prior to any actual violations. Furthermore, as observed in a
publication by the North Carolina Institute of Government, North
Carolina's Public Records Act “does not distinguish between activeand inactive or closed investigations.”
Public Records 110.
Considering the many underlying purposes for the criminal
investigation exception - protecting investigative techniques,
informant identities, and reputations of persons investigated but
not charged, and encouraging citizens to volunteer information -
“closing an investigation [should have] no effect on the status of
the records of that investigation.”
Public Records 111;
see also
News and Observer v. State, 312 N.C. at 282-83, 322 S.E.2d at 138
(noting as rationale for exemption of criminal investigation
reports: their common reliance on hearsay, opinions, and
conclusions of investigators; the protection of investigative
techniques and confidentiality of government informants; and the
impairing implications for future investigations, including
stifling witnesses' willingness to “respond candidly”).
See also
Gannett, 164 N.C. App. at 161, --- S.E.2d at ---, 2004 N.C. App.
LEXIS at *13 (holding criminal intelligence records of completed
SBI investigation not public records subject to disclosure).
Accordingly, we agree with the City Attorney that the trial court
erred in adopting a straight-line rule through the application of
the 2-year statute of limitations for misdemeanors. In light of
the broad scope and purposes behind the criminal investigation
exception, the trial court should have conducted an
in camera
review, as requested by the City Attorney, to properly determine,
based on the purpose in compiling each withheld document and the
definitions for “records of criminal investigations” and “records
of criminal intelligence information” found in sections 132-1.4(b)(1)-(2), whether the material was subject to the exception.
(See footnote 3)
With respect to documents on remand that the trial court may
conclude do not qualify as public records under section 132-1.4, we
observe that section 132-1.4(a) grants the trial court the
discretion to nevertheless disclose such documents if they could be
obtained by defendant pursuant to the normal rules of discovery.
See News and Observer v. State, 312 N.C. at 277, 322 S.E.2d at 135.
C
Chapter 15A Protections
[4] The City Attorney contends he was further entitled to the
protections granted by the discovery rules of Chapter 15A governing
the North Carolina Rules of Criminal Procedure. We disagree.
In addition to the provisions listed above, the criminal
investigation exception to the Public Records Act provides:
(h) Nothing in this section shall be
construed as requiring law enforcement
agencies to disclose the following:
(1) Information that would not be
required to be disclosed under
Chapter 15A of the General
Statutes.
N.C.G.S. § 132-1.4(h)(1) (2003). The City Attorney's Office,
however, is not subject to this provision because zoning
violations, prosecutable only as misdemeanors, fall within the
jurisdiction of the district court. Chapter 15A, which is subject
to the superior court's jurisdiction, is therefore not applicable.
See N.C.G.S. § 7A-271(a) (2003) (“[t]he superior court has
exclusive, original jurisdiction over all criminal actions notassigned to the district court division by this Article”); N.C.G.S.
§ 7A-272(a) (2003) (“the district court has exclusive, original
jurisdiction for the trial of criminal actions, including municipal
ordinance violations, below the grade of felony”); N.C.G.S. § 15A-
901 (2003) (“[t]his Article applies to cases within the original
jurisdiction of the superior court”). Moreover, the Official
Commentary to N.C. Gen. Stat. § 15A-901 notes:
As cases in district court are tried
before the judge, and usually on a fairly
expeditious basis, the Commission decided
there was no need at present to provide for
discovery procedures prior to trial in
district court. As misdemeanors tried in
superior court on trial de novo have already
had a full trial in district court, there is
little reason for requiring discovery after
that trial and prior to the new trial in
superior court.
This Article, then, applies to felonies
and misdemeanors in the original jurisdiction
of the superior court.
N.C.G.S. § 15A-901 official commentary (2003). Consequently, this
assignment of error is overruled.
III
We next consider whether the trial court erred in its
interpretation of the Public Records Act with respect to privileged
material and the City Attorney's work product.
Privilege
[5] Defendant contends the trial court erred in failing to
apply the limited attorney-client privilege outlined in N.C. Gen.
Stat. § 132-1.1(a) when it denied disclosure of “attorney-client
materials created within three years from October 31, 2002 in this
or any other proceeding.” Specifically, defendant argues the trial
court: (1) did not apply the statutory factors in determiningprivilege for purposes of a public records request and (2) erred in
setting a fixed three-year period for disclosure dating from the
time of the document's creation.
Section 132-1.1(a) provides:
(a) Confidential Communications.
-- Public records, as defined in G.S. 132-1,
shall not include written communications (and
copies thereof) to any public board, council,
commission or other governmental body of the
State or of any county, municipality or other
political subdivision or unit of government,
made within the scope of the attorney-client
relationship by any attorney-at-law serving
any such governmental body, concerning any
claim against or on behalf of the governmental
body or the governmental entity for which such
body acts, or concerning the prosecution,
defense, settlement or litigation of any
judicial action, or any administrative or
other type of proceeding to which the
governmental body is a party or by which it is
or may be directly affected. Such written
communication and copies thereof shall not be
open to public inspection, examination or
copying unless specifically made public by the
governmental body receiving such written
communications; provided, however, that such
written communications and copies thereof
shall become public records as defined in G.S.
132-1 three years from the date such
communication was received by such public
board, council, commission or other
governmental body.
N.C.G.S. § 132-1.1(a) (2003). As reiterated by our Supreme Court
in
Poole, the statutory protection for privileged information is
more narrow than the traditional common law attorney-client
privilege.
Poole, 330 N.C. at 482, 412 S.E.2d at 17. According to
the statute, “[t]he Public Records Law provides only one exception
[based on privilege] to its mandate of public access to public
records: written statements to a public agency, by any attorney
serving the government agency, made within the scope of theattorney-client privilege,” and involving a claim, defense,
settlement, litigation, or administrative proceeding.
Id. at 481-
82, 412 S.E.2d at 17; N.C.G.S. § 132-1.1(a).
In this case, the wording of the trial court order leaves in
doubt whether the trial court meant to disclose material under the
common law privilege or under the strict guidelines of section 132-
1.1. In addition, the bright-line three-year-rule adopted by the
trial court, focusing on the date of a document's
creation, is
contrary to the mandate of the statute providing that all
confidential documents falling within the definition of the statute
become subject to disclosure as a public record “three years from
the date such communication was
received by [a] public board,
council, commission or other governmental body.” N.C.G.S. § 132-
1.1(a) (emphasis added). We therefore remand this issue to the
trial court for a consideration of and ruling on the City
Attorney's documents consistent with the provisions of section 132-
1.1(a).
Work Product
[6] In its brief to this Court, the City Attorney, recognizing
the absence of any explicit exception for work product in the
Public Records Act, argues for the proposition that the common law
work product rule operates as an exception to the Act.
In support of his contention, the City Attorney relies on the
provision contained in N.C. Gen. Stat. § 132-1(b), stating that “it
is the policy of this State that the people may obtain copies of
their public records and public information free or at minimal cost
unless otherwise specifically provided by law.” N.C.G.S. § 132-1(b) (2003) (emphasis added). According to the City Attorney, the
language “unless otherwise specifically provided by law” presents
a clear intent by the Legislature to “incorporate[] statutory and
common law privileges into the Public Records Act, including work
product immunity.” We disagree with this broad reading of the
statute.
In
In re Decision of the State Bd. of Elections, this Court
interpreted the language of section 132-1(b) to only recognize an
exception to the Public Records Act in the face of “a 'clear
statutory exemption or exception' to the Act.”
In re Decision of
the State Bd. of Elections, 153 N.C. App. 804, 806, 570 S.E.2d 897,
898 (2002) (quoting
Virmani v. Presbyterian Health Servs. Corp.,
350 N.C. 449, 462, 515 S.E.2d 675, 685 (1999)),
disc. review
denied, 356 N.C. 671, 577 S.E.2d 114 (2003). In other words,
“North Carolina's public records act grants public access to
documents it defines as 'public records,' absent a specific
statutory exemption.”
Virmani, 350 N.C. at 465, 515 S.E.2d at 686
(citing N.C.G.S. § 132-1(b)) (emphasis added). Accordingly, in the
history of the Public Records Act, only statutory, not common law
exceptions have been recognized.
See, e.g., Poole, 330 N.C. at
476, 412 S.E.2d at 14 (recognizing “personnel file” exception in
N.C. Gen. Stat. § 126-22 as an exemption to the rule on disclosure
of public records);
Bd. of Elections, 153 N.C. App. at 806, 570
S.E.2d at 898 (upholding exception to Public Records Act based on
specific statutory provision limiting access to election ballots).
As there is “[n]o statute specifically exempt[ing] from public
access materials held by a local government attorney that qualifyas work product” which would apply to the City Attorney, the City
Attorney's documents are not protected from disclosure as work
product.
(See footnote 4)
Public Records 126.
The City Attorney, however, argues that even prior to the
enactment of section 132-1(b), North Carolina case law indicated
that work product immunity would trump a public record requests.
The City Attorney relies on our Supreme Court's holding in
Piedmont
Publ'g Co. v. City of Winston-Salem, 334 N.C. 595, 434 S.E.2d 176
(1993). This unique case and its underlying policy are easily
distinguished.
Piedmont involved a public records request by a
newspaper of audio tapes containing the radio transmissions of a
police officer who had been fatally injured in a motor vehicle
collision.
Id. at 597-98, 434 S.E.2d at 177-78. The Supreme Court
held that the rules governing discovery in criminal actions created
an implicit exception to the Public Records Act and that the radio
tapes fell within this exception.
Id. The Supreme Court reasoned
that, if the tapes could not be obtained by a criminal defendant
under the rules for criminal discovery, they could also not be
available through the use of a public records request by a third
party. Otherwise, a criminal defendant whose discovery request was
denied by the trial court could simply ask a third person to make
a public records request so as to obtain such information
notwithstanding the discovery ruling.
Id. The Supreme Courttherefore ruled that the criminal discovery rules, limiting
disclosure to the State and the defendant, governed over the
newspaper's public records request.
Id. at 598, 434 S.E.2d at 178.
As the civil discovery rules protect the disclosure of both
privileged material and work product, the City Attorney contends
that the holding in
Piedmont also provides an exception in the case
sub judice. Although use of the Public Records Act in the manner
described in
Piedmont would likewise allow for circumvention of the
rules of discovery in a civil case between a litigant and a
government entity, the same policy implications do not apply in the
civil context.
[I]f the criminal discovery laws did not
create an implicit exception to the public
records law, there would be no purpose
whatever to the criminal discovery laws. The
only material that those laws protect is
material in the possession of public agencies,
either law enforcement agencies or the
district attorney's office; in the absence of
statutory protection, all the material held by
either a law enforcement agency or the
district attorney is public record and open to
public inspection. Therefore, if the rules of
criminal discovery were to have any effect at
all, the rules must have created an exception
to the public records law; otherwise, all
material subject to the rules would be public
record and could be available to the defendant
by that route.
The Rules of Civil Procedure, however,
retain almost their full scope even if they
are not held to create an implicit exception
to the public records law. Most civil
litigants are not governments, and therefore,
even if government attorney work product is
accessible under the public records law, the
work product of attorneys for private
litigants remains exempt from discovery or any
other form of access. There remains, that is,
plenty of purpose for the discovery rules in
civil litigation even if those rules do not
protect government litigants.
Public Records 127.
In addition to these policy considerations, we note that the
decision in
Piedmont predated the Legislature's enactment of N.C.
Gen. Stat. § 132-1.4, exempting most law enforcement records from
public inspection and including the Chapter 15A criminal discovery
protections addressed in issue II, C.
Public Records 126. It thus
appears that, faced with the implications of the
Piedmont holding,
the Legislature chose to codify an exception to the Public Records
Act for documents falling within the scope of the criminal
discovery rules,
see N.C.G.S. § 132-1.4(h)(1), but not for
documents within the scope of civil discovery. This interpretation
of the legislative intent underlying the Public Records Act is
further bolstered by the fact that the Legislature included only a
limited attorney-client privilege exception, but no work product
exception in the Public Records Act.
See N.C.G.S. § 132-1.1(a).
Consequently, we conclude that the City Attorney's work product was
subject to disclosure under the Act,
(See footnote 5)
unless, of course, the
relevant documents are independently exempted by virtue of the
criminal investigation exception. Thus, not only was the CityAttorney not entitled to greater protections than granted by the
trial court's order, but the trial court erred in granting the City
Attorney even limited work product protection.
Conclusion
Accordingly, the trial court's order is reversed with respect
to its ruling on work product. We further remand this case to the
trial court (1) to conduct an
in camera review to determine whether
materials withheld by the City Attorney are subject to the criminal
investigation exception and (2) for a consideration of and ruling
on the City Attorney's documents consistent with the provisions of
section 132-1.1(a) on privilege.
We have reviewed the parties' remaining arguments on appeal
and find them to be without merit.
Reversed and remanded.
Judges TIMMONS-GOODSON and ELMORE concur.
Footnote: 1