NC Appeals Court rules against media seeking Andrew Brown police recordings | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    A unanimous N.C. Court of Appeals panel has ruled against media outlets seeking law enforcement recordings linked to the April 2021 shooting death of Andrew Brown in Elizabeth City.

    Appellate judges agreed the media outlets should have filed a lawsuit to seek access to "custodial law enforcement agency recordings." The outlets instead had filed paperwork provided by the state office overseeing N.C. courts. The ruling upholds a November 2021 decision from Superior Court Judge Jerry Tillett.

    "Our review of the relevant statutory scheme shows that our legislature intended two different procedures for individuals seeking release of custodial law enforcement recordings: an expedited petition process for certain enumerated individuals, and an ordinary civil action for all others. We hold that Judge Tillett properly dismissed Petitioners' petition for lack of standing because they failed to 'file an action' as required" by state law, wrote Judge Jefferson Griffin.

    The 20 media plaintiffs featured national outlets CNN, New York Times, and USA Today, along with the state's largest print and broadcast media. They first sought access to the recordings within five days of Brown's shooting death. Brown had "suffered fatal gunshots during the attempted service of arrest and search warrants," Griffin wrote.

    In May 2021, Judge Jeffery Foster first rejected the media outlets' request. "In balancing the interest of release to the public and the media against the State's interest, Judge Foster found the State's interest weighed more heavily because '[r]elease would create a serious threat to the fair[] and orderly administration of justice' and there was a need to protect the State's 'active internal or criminal investigation,'" Griffin explained.

    That same month, the Pasquotank County district attorney announced he would bring no charges in connection with Brown's shooting. Media outlets then asked again for access to the recordings. Tillett considered their request in September 2021.

    Appellate judges agreed with Tillett that the media outlets failed to follow the proper procedure. They should have "filed an action," rather than use a petition form provided by the state Administrative Office of the Courts.

    "Section 132-1.4A(g) states that anyone seeking general release of a CLEAR may 'file an action.' 'Action' is a term of art, defined as 'an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment or prevention of a public offense,'" Griffin wrote. "The plain meaning and use of the term 'action' means that our legislature intended for those seeking release under section 132-1.4A(g) to file an ordinary civil action, not a petition using an AOC form."

    Griffin compared the request for law enforcement recordings to a request for public records.

    "Access to public records is not ordinarily contested, but section 132-9 authorizes public record seekers to initiate an action when their request is denied," he wrote. "CLEARs by statute are not public records, are by default not to be released, and therefore proceedings for their release are by their very nature contested. It follows that section 132-1.4A(g) would require an action be filed to resolve a contested matter."

    "The plain language of N.C. Gen. Stat. § 132-1.4A(g) instructs those seeking general release of CLEARs to 'file an action,'" Griffin concluded.

    Judges John Tyson and Jeff Carpenter joined his decision.