CLF Open Records Lawsuit Proceeds Despite Burdensome Mediation Requirements | Eastern North Carolina Now

    Publisher's note: This post, by Elliot Engstrom, was originally published in the Center for Law and Freedom section of Civitas's online edition.

    The Civitas Institute Center for Law and Freedom (CLF) has moved for summary judgment in Gaston County Superior Court on behalf of clients seeking access to public records within the custody of the City of Belmont, North Carolina. The motion is the latest step in a lawsuit that CLF filed in August of 2015.

    The case presents the issue of whether an investigation into the Belmont Police Department is a public record. Put briefly, CLF is alleging that an investigation conducted into a police department by a private investigation company is a public record, and as such it should be disclosed pursuant to the Public Records Act. The City of Belmont has taken the position that the entire investigative report is a confidential personnel file, and that it therefore does not have to disclose the report as a public record. The parties essentially agree as to the facts of the case; they only disagree only as to how the public records and personnel laws apply to those facts. Such disagreements of law are ripe for argument on what is called "summary judgment," where a judge rules on how the law applies to a given set of facts - the idea being that if no facts are in dispute, it is more efficient for a court to dispose of the case without engaging in intensive fact-finding, whether on its own or with the help of a jury.

    In December of 2015, the parties were essentially ready to make their arguments on summary judgment. The defendants filed their answer to the lawsuit, and after conducting a small amount of discovery it was clear that the parties agreed on all the material facts, meaning that a decision made purely on the law was appropriate. However, North Carolina law requires the parties to a public records dispute to submit to mediation before a court has jurisdiction to compel the production of public records. While the mediation statute does provide for a waiver of mediation, the parties can only do so after requesting mediation and designating a mediator. These are time-consuming steps that substantially delay access to public records.

    Here's the most egregious part - in this case, the plaintiffs and the defendants agreed that mediation was unnecessary. All parties cooperated to waive mediation as quickly as possible. And yet, it still took three months from the time that the parties were ready to argue the case to the time when the plaintiffs were legally able to move for summary judgment.

    There may be cases where it makes sense for the parties to a public records dispute to go through mediation. For example, if there are numerous issues of fact in dispute, a mediator might be able to resolve whose version of the story is true, helping avoid the process of fact finding by a judge or jury. But in cases where the parties agree as to all material facts, it is unnecessary and onerous to require mediation, particularly in light of the Public Records Acts' statement that public records are "the property of the people" and that "the people may obtain copies of their public records and public information free or at minimal cost."

    Regardless, CLF has now moved for summary judgment and filed a notice of hearing for May 16 in Gaston County Superior Court. As that date draws closer, both sides will likely file written briefs before making their oral arguments in court. All public case documents will continually be added to CLF's litigation library.