Appeal by plaintiffs from order entered 20 February 2006 by
Judge Gary L. Locklear in Columbus County Superior Court. Heard in
the Court of Appeals 16 November 2006.
Everett Gaskins Hancock & Stevens, LLP, by Hugh Stevens and C.
Amanda Martin, for plaintiffs-appellants.
Womble Carlyle Sandridge & Rice, PLLC, by Mark A. Davis and
James R. Morgan, Jr.; and Columbus County Attorney's Office,
by Steve Fowler, for defendants-appellees.
This appeal arises from the refusal of defendant Columbus
County and its County Manager, defendant James Varner, to make
available to plaintiff newspapers, under the Public Records Act,
N.C. Gen. Stat. §§ 132-1 et seq. (2005), a letter prepared by a
county employee and sent to the Columbus County Board of
Commissioners regarding the Columbus County medical directorcontract. Based upon our review of the letter, we hold that the
trial court erred in concluding that the entire letter was
protected from disclosure under exceptions to the Public Records
Act as applicable to counties. While portions of the letter are
protected from disclosure, those portions can be redacted, and the
remainder _ falling within the Public Records Act _ provided to
In 2004, Ronald Hayes was employed as the Director of
Emergency Services for Columbus County and reported directly to
Varner. Hayes was required, in his job, to work with Dr. Fred
Obrecht, who had a contract with the County to serve as the
County's medical director. That contract expired on 1 July 2004,
and, in 2005, the Columbus County Board of Commissioners ("the
Board") was considering whether to renew the contract. In
September 2005, Hayes wrote a letter to the Board and its personnel
committee, discussing in part his experience working with Dr.
Obrecht. The letter also recommended Dr. Peggy Barnhill for the
position of medical director. On 19 September 2005, the Board
announced that it was extending Dr. Obrecht's contract.
Plaintiffs' request for a copy of Hayes' letter was denied by
defendants. On 21 October 2005, plaintiffs filed suit against the
County and Varner, seeking a declaratory judgment that the letter
was a public record as defined by N.C. Gen. Stat. § 132-1 (2005)
and an order compelling defendants to allow plaintiffs to view and
copy the letter. Defendants filed an answer denying that theletter was a public record and, on 30 January 2006, moved for
On 20 February 2006, the trial court entered summary judgment
in favor of defendants in a summary decision, concluding only "that
there is no genuine issue of material fact and Defendants are
entitled to judgment as a matter of law." Plaintiffs timely
appealed from this order.
The parties do not, on appeal, point to any issues of material
fact for trial. Indeed, the pertinent facts are undisputed. The
questions before this Court are: (1) is the letter sent by Hayes
to the Board a "public record" within the meaning of the Public
Records Act, N.C. Gen. Stat. § 132-1, and (2) if so, is the letter
exempted from disclosure as a personnel record under N.C. Gen.
Stat. § 153A-98 (2005)? These questions present issues of law
regarding the interpretation of §§ 132-1 and 153A-98 as applied to
the undisputed facts. This case is, therefore, "a proper case for
summary judgment." Knight Publ'g Co. v. Charlotte-Mecklenburg
, 172 N.C. App. 486, 488, 616 S.E.2d 602, 604, disc.
, 360 N.C. 176, 626 S.E.2d 299 (2005).
"Under the Public Records Act, the public generally has
liberal access to public records." Id.
at 489, 616 S.E.2d at 605.
The parties, however, first dispute whether Hayes' letter
constitutes a "public record" under that Act. N.C. Gen. Stat. §
132-1 defines "public record" as meaning:
all documents, papers, letters, maps, books,
photographs, films, sound recordings, magneticor other tapes, electronic data-processing
records, artifacts, or other documentary
material, regardless of physical form or
characteristics, made or received pursuant to
law or ordinance in connection with the
transaction of public business
by any agency
of North Carolina government or its
. Agency of North Carolina
government or its subdivisions shall mean and
include every public office, public officer or
official (State or local, elected or
appointed), institution, board
bureau, council, department, authority or
other unit of government of the State or of
, unit, special district or other
political subdivision of government.
N.C. Gen. Stat. § 132-1(a) (emphases added).
It is undisputed that Hayes' letter was written by a county
employee, who was required to work with the medical director, and
was received by the Board in connection with its decision regarding
whom to hire as medical director, an independent contractor of the
County. We hold that, under these circumstances, the Hayes letter
constituted a public record. See Virmani v. Presbyterian Health
, 350 N.C. 449, 462, 515 S.E.2d 675, 685 (1999) ("The
term 'public records,' as used in N.C.G.S. § 132-1, includes all
documents and papers made or received by any agency of North
Carolina government in the course of conducting its public
Our Supreme Court has held that "in the absence of clear
statutory exemption or exception, documents falling within the
definition of 'public records' in the Public Records Law must be
made available for public inspection." News & Observer Publ'g Co.
, 330 N.C. 465, 486, 412 S.E.2d 7, 19 (1992). N.C. Gen.
Stat. § 132-6(a) (2005) specifically provides: "Every custodian ofpublic records shall permit any record in the custodian's custody
to be inspected and examined at reasonable times and under
reasonable supervision by any person, and shall, as promptly as
possible, furnish copies thereof upon payment of any fees as may be
prescribed by law."
Defendants, however, contend that the Hayes letter falls
within the statutory exemption provided by N.C. Gen. Stat. § 153A-
98, which provides in pertinent part:
(a) Notwithstanding the provisions of
or any other general law or local
act concerning access to public records,
personnel files of employees . . . maintained
by a county are subject to inspection and may
be disclosed only as provided by this section.
For purposes of this section, an employee's
personnel file consists of any information in
any form gathered by the county with respect
to that employee and, by way of illustration
but not limitation, relating to his
application, selection or nonselection,
performance, promotions, demotions, transfers,
suspension and other disciplinary actions,
evaluation forms, leave, salary, and
termination of employment. . . .
. . . .
(c) All information contained in a
county employee's personnel file, other than
the information made public by subsection (b)
of this section, is confidential and shall be
open to inspection only in the following
instances . . . .
(Emphasis added.) Our Supreme Court has held that if a document
falls within the scope of N.C. Gen. Stat. § 153A-98(a), then it is
"not governed by N.C.G.S. § 132-6 of the Public Records Act because
N.C.G.S. § 153A-98 provides such inspection and disclosure may only
be done as provided by that section." Elkin Tribune, Inc. v.Yadkin County Bd. of County Comm'rs
, 331 N.C. 735, 736, 417 S.E.2d
465, 466 (1992).
Hayes' letter addresses in part his experiences working with
Dr. Obrecht, as well as providing information about another
possible candidate for medical director. Because Dr. Obrecht was
an independent contractor, defendants appropriately do not argue
that the letter is entitled to protection under § 153A-98 as a
personnel record of Dr. Obrecht. Instead, defendants contend that
the letter constitutes a "personnel record" because it relates to
Hayes' performance as a county employee and it was placed in his
Initially, plaintiffs argue that § 153A-98 does not apply
because Hayes' letter was not "gathered" by the Board, but rather
was voluntarily sent by Hayes to the Board. This argument has
previously been rejected by both the Supreme Court and this Court.
See Elkin Tribune
, 331 N.C. at 737-38, 417 S.E.2d at 467 (rejecting
contention that county employee's application for employment was
not included in personnel file because applications were sent to
the county rather than "gathered" by the county); Knight Publ'g
172 N.C. App. at 492-93, 616 S.E.2d at 607 ("Contrary to
plaintiff's argument in this case, the documents it requested from
defendant were 'gathered' by defendant if the documents were
amassed or assembled in an employee's personnel file.").
On the other hand, we disagree with defendants' suggestion
that the fact defendant Varner chose to place the letter in Hayes'
personnel file has any bearing on whether that letter falls withinthe scope of § 153A-98. Whether a document is part of a "personnel
file," within the meaning of § 153A-98(a), depends upon the nature
of the document and not upon where the document has been filed.
330 N.C. at 476, 412 S.E.2d at 14 ("Under the plain
meaning of the statutory language, any information
definition of 'personnel file' is excepted from the Public Records
Law." (emphasis added)). As plaintiff points out, a contrary
holding would transform a newspaper clipping discussing an
employee's performance into a confidential record if that clipping
happened to be filed in the employee's official personnel file.
Further, defendants' contention would allow governmental
officials to avoid disclosure of a document under the Public
Records Act simply by placing a document in an employee's file.
Our Supreme Court has held that "[a] custodian of such 'public
records' has no discretion to prevent public inspection and copying
of such records." Virmani
, 350 N.C. at 465, 515 S.E.2d at 686.
Focusing on where the document is stored would, however, grant the
custodian precisely the discretion precluded by the Public Records
Act. Indeed, this Court has previously held that the Public
Records Act may not be interpreted in a way that allows
"municipalities and other governmental agencies [to] skirt the
public records disclosure requirements" by lodging public records
"that municipalities and agencies [choose] to shield from public
scrutiny" in a particular location not generally subject to
disclosure. Womack Newspapers, Inc. v. Town of Kitty Hawk
N.C. App. 1, 13-14, 639 S.E.2d 96, 105 (2007) (holding that towncould not place public records with independent contractor in order
to escape public records disclosure requirements).
After examining the letter at issue, we believe that the
portions discussing Hayes' interactions with Dr. Obrecht constitute
"any information in any form gathered by the county with respect to
that employee . . . relating to his . . . performance . . . ."
N.C. Gen. Stat. § 153A-98(a). The letter does not comment on Dr.
Obrecht's qualifications, skill, or reputation as a physician or on
whether Dr. Obrecht's medical skills and training were a good match
for the County's needs, but rather discusses Hayes' ability to work
with Dr. Obrecht. We believe that the letter, to the extent it
discusses Dr. Obrecht, also relates to Hayes' performance as a
Plaintiffs, however, point to Poole
, 330 N.C. at 476, 412
S.E.2d at 14, as requiring that the letter "relate to at least one
of the enumerated activities by the employer
with respect to the
individual employee." (Emphasis supplied by plaintiffs.) The
Supreme Court in Poole
was, however, construing a different
statute: N.C. Gen. Stat. § 126-22 (1987). That statute provided
that the information constituting a personnel file must "relate
to the individual's application, selection or nonselection,
promotions, demotions, transfers, leave, salary, suspension,
performance evaluation forms
, disciplinary actions, and termination
of employment" (emphasis added) _ all areas involving action by the
employer, as the Supreme Court held. See id.
at 476, 412 S.E.2d at
14. In contrast, N.C. Gen. Stat. § 153A-98(a) specificallyreferences "performance" generally and, in any event, contains a
list that is "merely illustrative," Knight Publ'g
, 172 N.C. App. at
495, 616 S.E.2d at 608, as indicated by the qualification that the
list is "by way of illustration but not limitation," N.C. Gen.
Stat. § 153A-98(a). We, therefore, hold that the portions of the
letter addressing Hayes' experience with Dr. Orbecht fall within §
The Hayes letter is not, however, limited to discussing Dr.
Orbecht, but also addresses Hayes' recommendation of Dr. Peggy
Barnhill for the position of county medical director. In addition,
it contains a paragraph describing Hayes' interactions with the
Board regarding its process in making decisions relating to the
medical director contract. This paragraph explains how Hayes came
to write the letter.
N.C. Gen. Stat. § 153A-98(a) does not protect all information
"with respect to" an employee. Instead, it requires both (1) that
the information be "with respect to" the employee, and (2) that it
"relat[e] to" a list of subjects arising out his employment,
although that list is "by way of illustration but not limitation."
Thus, although the precise test articulated in Poole
apply, § 153A-98(a) still requires, at least, that the information
relate to the employee's employment with the governmental body.
(See footnote 1)
We can perceive no basis for considering the Barnhill portion
of the letter or the description of the Board's conduct to be "anyinformation" gathered by the County "with respect to" the types of
matters governed by § 153A-98(a) regarding Hayes' employment with
the County. Id.
Thus, a portion of the letter is covered by §
153A-98(a), but a portion of the letter is not. N.C. Gen. Stat. §
132-6(c) specifies that "[n]o request to inspect, examine, or
obtain copies of public records shall be denied on the grounds that
confidential information is commingled with the requested
nonconfidential information." The statute specifically provides
that a governmental body may be required "to separate confidential
from nonconfidential information in order to permit the inspection
. . . ." Id.
Accordingly, defendants may redact those portions of the Hayes
letter protected from disclosure by § 153A-98, but must produce the
remaining portions. Based upon our review of the letter,
defendants are directed to redact the last sentence of the first
paragraph of the letter (beginning "However . . . .") and the
entirety of the letter's second paragraph (beginning "We have . .
. ."), third paragraph (beginning "There have . . . ."), and sixth
paragraph (beginning "I feel . . . ."). The first sentence of the
fourth paragraph (beginning "As you gentlemen are aware . . . .")
must also be redacted. The remainder of the first paragraph,
together with the remainder of the fourth paragraph (beginning "As
you are also aware . . . .") and the fifth paragraph (beginning "At
this time . . . .") must be provided to plaintiffs.
Affirmed in part and reversed in part.
Judges LEVINSON and JACKSON concur.