Government: William McKinney, general counsel in the Office of the Governor, is the winner of the 2018 Sunshine Award in government. The Coalition is honoring McKinney because of the work he has done since joining the governor’s office to help make executive branch agencies transparency. The person who nominated McKinney wrote: “Mr. McKinney has been integral to ensuring the administration is governed by the highest principles of transparency. McKinney was integral to resolving the long running public records litigation that had been filed by the media and public interest groups against (the governor’s office).” 

Journalism: Nick Ochsner, investigative reporter at WBTV News in Charlotte, is the winner of the 2018 Sunshine Award in journalism. Ochsner was nominated for his dogged pursuit of public records at all levels of government, including his requests for text messages from the sheriffs of Ashe and Union counties. In both instances the station brought public records lawsuits against the sheriffs, and in Ashe County the sheriff was removed from office over his handling of the records requests. 

Advocacy: Will Hendrick of the Waterkeeper Alliance is the winner of the 2018 Sunshine Award for advocacy. During his time as an attorney with the Waterkeeper Alliance and before that with the Southern Environmental Law Center, Hendrick has doggedly pursued access to public records. Last year he settled a dispute with the N.C. Department of Agriculture, which had attempted to charge more than $4,000 in fees to inspect records related to Hurricane Matthew. In the settlement, the department agreed to provide the records and change its policy so that people who wished to inspect records were not charged a fee. 

The N.C. Open Government Coalition's annual Sunshine Day event will be held March 12, 2018 at the on N.C. A&T State University's campus. 

This year's program includes discussions on legislative transparency, the effectiveness of the new police video law and a learning session on the N.C. Open Meetings Law. Speakers include, WRAL capitol reporter Laura Leslie, N.C. Policy Watch reporter Joe Killian, N.C. Open Government Coalition Director Jonathan Jones and ACLU of N.C. Legal Director Chris Brook, News & Observer Opinions/solutions editor John Drescher and media lawyers Hugh Stevens and Jon Buchan. 

Schedule: 

10 a.m.: Check-in and Welcome

10:10-10:40 a.m.: Success and failures in the police video law 

*Jon Buchan, partner, Essex Richards

10:45-11:30 a.m.: Nuts & Bolts of the Open Meetings Law

*Jonathan Jones, director, North Carolina Open Government Coalition

11:35-11:55 a.m.: Sunshine Week Reporting Project on Closed Sessions

*Tyler Dukes, public records reporter, WRAL

Noon-12:45 p.m.:  Luncheon

12:45-1 p.m.: Welcome & Awards Presentations

1:05-1:40 p.m.: Transparency Q&A with John Drescher

*John Drescher, opinion editor, News & Observer

*Hugh Stevens, partner, Stevens, Martin, Vaughn & Tadych

1:45 – 3 p.m.: Transparency in the legislature

*Christopher Brook, legal director, ACLU of North Carolina

*Laura Leslie, capitol reporter, WRAL

*Joe Killian, investigative reporter, N.C. Policy Watch

3 p.m.: Closing – Jonathan Jones

Parking: 

On-street parking is available on a first-come, first-serve basis around campus. Visitor parking at an hourly rate is available at 102 N. Laurel Street, Greensboro. Tickets for Sunshine Day can be purchased . 

The coalition's will also be presented at Sunshine Day. 

The awards are intended to honor people and organizations whose work helps keep citizens informed about what their governments are up to. The coalition honors one outstanding journalist, government employee or organization, and an advocate for transparency each year. In some years a citizen award is also given out. One was not awarded in 2017.

The winner of the 2017 Sunshine Award for journalism is Lisa Worf, WFAE associate news director. Worf was nominated for her on a new law that took effect in 2016 governing how police video is made available to the public. The law exempted video from the public records law and created a new process through the courts for determining whether or not it should be released. Worf was one of the first people in the state to test the new process to gain access to a video of a police shooting. From preparing to file a petition with the court, to arguing against attorneys representing the police department and district attorneys office, Worf took her audience with her through the journey. After initially being denied, Worf eventually convinced a court to release the video. 

The winner of the 2017 Sunshine Award for advocacy goes to Elliot Engstrom, fellow at the 消消犯 School of Law. Prior to joining the law school, Engstrom was an attorney at the Civitas Institute’s Center for Law and Freedom. It was in that role that he took the case of , in the public interest, who was trying to get information from the city of Belmont in Gaston County related to her sister’s death. Engstrom represented Tucker in a lawsuit against the city over it’s refusal to release a report on the police department that was prepared by a private investigative agency on the city’s behalf.  In August, the court ruled that significant portions of the report are public record and must be released.

The winner of the 2017 Sunshine Award for government is Orange County Government on the basis of its efforts to move information online to ease access. In November 2016, Orange County launched a that allows users to easily find such things as budgets, financial audits, email sent to county commissioners, contracts, expenditures, planning permits, and streaming video of meetings. By creating a portal for easier access to these important records, Orange County is proactively making records available before a public records request is necessary. 

Attorney General Josh Stein is expected to deliver the keynote address at Sunshine Day 2017. The program includes an instructional session on obtaining police video in the morning, presentation of our annual Sunshine Awards at lunch, and afternoon discussions of timeliness in fulfilling requests and handling requests for social media records. 

Order tickets . 

Table sponsorships are available for $450 or a half-table for $250. Both sponsorships include prominent placement in event programs. A table sponsorship includes tickets for eight people. A half-table sponsorship includes tickets for four. If you’re interested in sponsoring Sunshine Day 2017, contact North Carolina Open Government Coalition Director Jonathan Jones at jjones86@elon.edu no later than March 9 

The event will be held in the Snow Family Grand Atrium and Turner Theatre, located at 123 N. Williamson Avenue, Elon, N.C. Parking will be available in The Oaks lot, located at the northwest corner of the intersection of North Williamson Avenue and Elon Commons Drive, approximately one and a half blocks north of the atrium. 

Schedule:

10 a.m.: Registration

10:15 a.m.: Accessing Police Video

Turner Theatre

• Mike Tadych, partner, Stevens, Martin, Vaughn & Tadych
• Lisa Worf, assistant news director, WFAE
• Hon. Eric Levinson, superior court judge, Mecklenburg Co.

11:40 a.m.: Public records audit results

Turner Theatre

• Mark Binker, WRAL

Noon: Lunch & Keynote

Snow Family Grand Atrium

• Welcome from Jonathan Jones, director, NCOGC
• Awards Presentation
• Keynote speech from Josh Stein,  North Carolina attorney general

1:10 p.m.: Timeliness in Responding to Records Requests

Turner Theatre

• Ann Doss Helms, reporter, The Charlotte Observer
• Sabrina Oliver, communications & public affairs director, Chapel Hill
• Beverly Thompson, public affairs director, Durham

2:15 p.m.: Case Study: Investigating Belmont

• Elliot Engstrom, legal method and communication fellow, Elon Law

2:30 p.m.: Social Media as Public Record

• Damien Graham, communications director, Raleigh
• Kelly Eubank, N.C. Government & Heritage Library
• Camille Tyndall Watson, State Archives of N.C.

3:30 p.m.: Close

In July 2015, a coalition of media outlets and advocacy groups against McCrory and several of his cabinet secretaries over the handling of public records requests. The central issue in the case is the length of time some agencies, including the governor’s office, have taken to make records available. 

In May 2016, Superior Court Judge John “Joe” Craig, of High Point, held a hearing on preliminary motions in the case. At that hearing, lawyers for the McCrory administration raised the defense of sovereign immunity for the first time. Sovereign immunity is a legal doctrine that the state generally cannot be sued unless it consents to a lawsuit. Failure to raise an immunity claim in a timely manner waives the defense, and the Public Records Law explicitly anticipates state agencies facing lawsuits should they fail to comply. Craig issued an order rejecting most of the McCrory Administration’s motions, including the one releated to immunity.  

 Tuesday, the Court of Appeals rejected the sovereign immunity claims. In a , a three-judge panel made up of judges Linda Stephens, Wanda Bryant and Ann Marie Calabria ruled that the immunity claim was not properly raised in the trial court because it was never mentioned in any of the legal filings prior to the hearing in front of Craig and the plaintiff’s lawyers were not given an opportunity to prepare adequately for that argument when it was raised in court. 

The appeal came at an early stage in the lawsuit. It’s what is known as an “interlocutory” appeal, which occurs when a case has not yet been settled at the trial level and allowing it to move forward could jeopardize a substantial right of one of the parties.

After the Court of Appeals decision, the case is likely to return to superior court for further proceedings. A new law that allows all 15 judges of the Court of Appeals to rehear cases as a group, while sitting en banc, will not take effect until February, after the time in which the administration will have to request an appeal if it chooses to. Because the decision was unanimous, the N.C. Supreme Court is not required to hear any appeal of Tuesday’s opinion, although it could choose to do so. 

Several of the plaintiffs in the lawsuit are organizational members of the N.C. Open Government Coalition, including the News & Observer, Charlotte Observer, WRAL, and N.C. Policy Watch. 

Learn more about the N.C. Open Government Coalition . 

A regulatory reform bill, , was filed in the House. It would make several changes to the . 

First, the bill would create a new exemption for “personally identifiable information” of public utilities customers who contact the staff of the seeking help with disputes over rates or services. The names, addresses, phone numbers and email addresses of people who contact the commission would be exempt. When people make formal complaints to the commission itself, those complaints would remain public. The new exemption would make it difficult for the public to evaluate how well the commission staff handles citizen concerns as well as the service of public utilities. 

Second, the bill expands the definition of “identifying information” collected by the Wildlife Resources Commission and the Marine Fisheries Commission to include email addresses and customer identification numbers. Each commission has individual exemptions under separate statutes that requires it to treat identifying information in the way that the Public Records Law to handle social security numbers and other personal information. 

Finally, the bill would change how agencies are required to provide access to public records and electronic databases. Under existing law, an agency must permit inspection or provide a copy of a record or database upon request, unless it is otherwise exempt. The person making the request has the choice of format, as long as it is one in which the agency is capable of reproducing the record. 

The bill would permit agencies to satisfy their obligation under the Public Records Law by making records and databases accessible online in a format that allows the record or database to be downloaded. The agency would not be required to provide the record or database in any other form or format. The agency could choose to provide the record or database in another format “as a service to the requestor” and would be permitted to “negotiate a reasonable charge for the service.”   

would remove from the public record photographs taken by law enforcement of people charged with crimes. These pictures, commonly called mug shots, could be released by law enforcement if the person was charged with a felony or if release of the photograph was necessary for public safety. 

Another bill filed in the house, , would require community association managers to obtain licenses from the Real Estate Commission. Personal information collected by the commission in making licensing decisions would be exempt, similar to other professional licensing exemptions. 

Q: Are police videos public records?

A: The that is in effect until the beginning of October defines public records as “all documents… films, sound recordings … or other tapes … 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 subdivisions.” In other words, videos made by law enforcement fall within the definition of a public record and should be released unless an exemption applies.   

Q: Do any exemptions to the Public Records Act apply?

A: The current public records law does not mention police video and does not provide a direct exemption for it. Our Supreme Court held in “that in the absence of clear statutory exemption or exception, documents falling within the definition of ‘public records’ in the Public Records Act must be made available for inspection.”  

But even though there is not a specific exemption for video under the current law, there are two exemptions that are frequently cited by law enforcement agencies in refusing to release videos to the public. Those are the law enforcement and personnel exemptions. 

Q: Does the law enforcement exemption apply to police video?

A: It’s unclear to what extent to the law enforcement exemption applies, but it likely applies to some video.

North Carolina’s law enforcement exemption is quite broad and can be found at   It removes from the public record all records or information that is “compiled by public law enforcement agencies for the purpose of attempting to prevent or solve violations of the law.” 

To determine whether or not that applies to police video you have to determine the purpose of the camera’s deployment. In many instances it is passively recording and is not being used to investigate or prevent a specific crime. In some instances, though, such as many DWI investigations, cameras are used to investigate a specific crime and the exemption may apply. 

Only one North Carolina court has looked at the issue. In 2009 several to a dashboard camera recording of the moments leading up to a fatal encounter between an Archdale police officer and a UNC Chapel Hill student. Superior Court Judge Bradley Long  that whatever the purpose of the camera, that in that particular case it was an investigative record. 

Because that ruling was not appealed to the N.C. Court of Appeals, the case did not set a precedent that would bind other courts. 

In the absence of an appellate court ruling, it appears that in some instances the law enforcement exemption may apply to police video, but that in many instances it will not.

Several law enforcement agencies in North Carolina treat dash camera videos as public records and will release them on request, while many others claim that as a class they are exempt under the law enforcement exemption. 

Q: Aren’t there records that law enforcement must disclose? 

A: Yes. There is an exception to the law enforcement exemption. It is found at  It requires law enforcement to release basic information about incidents that they investigate. It includes things such as the name, age and address of people who are charged with crimes, what crimes they’ve been charged with, and when and where incidents occur and what kind of incident it was. 

There is one exception that is particularly relevant to police video. NCGS 132-1.4(C)(3) requires law enforcement to disclose “the circumstances surrounding an arrest, including the time and place of the arrest, whether the arrest involved resistance, possession or use of weapons, or pursuit, and a description of any items seized in connection with the arrest.” 

In many instances, body camera and dash camera video will be law enforcement’s best records of those circumstances surrounding an arrest. 

Q: Even if the law enforcement exemption applies, can video be released? 

A: Yes. The law enforcement exemption does not require withholding. A law enforcement agency in North Carolina can choose to release information that it could withhold under the Public Records Act. 

Q: Does the personnel exemption apply to police video?

A: It’s not likely, but possible. 

There are 10 different personnel statutes in state law governing the keeping of records about government employees. They’re all fairly similar, but there are separate statues depending on the type of government. There’s one each for , , and . 

The personnel statutes put limitations on what information about a particular employee may be released. It protects information “gathered by” a government agency with respect to a particular employee. The N.C. Court of Appeals in held that “[w]hether a document is part of a ‘personnel file,’ within the meaning of (the county employee personnel statute), depends upon the nature of the document and not upon where the document has been filed.”

That’s important because it requires a review of why the document was created. Simply placing a document in a personnel file or using a document for personnel review does not automatically exempt it. 

In the case of body camera video in particular, many and town councils in adopting policies allowing their use or authorizing expenditures for their purchase touted the new technology as a way to increase transparency and accountability to the public. If that is their purpose, then they would not be subject to the personnel exemption, which would hinder building transparency and accountability. 

But the School of Government has that the personnel statutes may apply, and many law enforcement agencies across the state have that viewpoint. 

Q: Even if the personnel exemption applies, can video be released?

A: Yes. The personnel statutes have provisions that allow release of confidential personnel information when it is “essential to maintaining public confidence in the administration …” With a city government, the council is empowered to release that information in concurrence with the city manager. At the county level the decision is up to county commissioners and the county manager. This provision was used by the Greensboro City Council in May 2016 to that captured a police officer’s shooting of an armed woman and to release video of an officer using excessive force on a young man. 

Q: So what is changing on Oct. 1?

A: At the request of several municipal governments, the General Assembly took up a this year to clarify the law on police videos and public records. The law primarily does four things. 1) It declares that police video is not subject to the personnel statutes. 2) It removes all police video, including body camera, dash camera and surveillance video, from the public record. 3) It creates a limited right of access for people who appear in videos to see the video, and an appeal process should they be denied. 4) It requires a court order for release of any video, and provides courts with some guidance as to when a video can be released. 

Q: Will the new law cover videos recorded before Oct. 1?

A: Probably. The law is silent on whether or not it applies to videos made prior to Oct. 1. It is likely that any requests for video made after Oct. 1 will be subject to the new law. 

Q: What rights do people who appear in the video have under the new law?

A: The law requires people who want to see videos in which they appear to make a written request to the head law enforcement officer of the agency, such as the chief or sheriff, that captured the video. The person making the request will have to provide the approximate time and date that the encounter occurred and provide some additional information so that the law enforcement agency can locate the record. People who are in the videos can also have a personal representative view the video on their behalf. 

The head law enforcement officer must determine whether or not the video will be disclosed within three days. The officer is given some leeway to restrict access if it would interfere with an active investigation, unduly invade someones privacy, identify a confidential informant, harm someones reputation, or create a threat to a fair trial. 

If the law enforcement officer denies the request or doesn’t respond within three days, the person has the right to petition a superior court judge to gain access. 

Those rules are only for disclosure, though. To gain release of the video so they could show it to others, the person would have to ask a superior court judge for an order. People who appear in the video are to be given an expedited review when they make such a request. 

Q: What rights does the general public have under the new law? 

A: Anyone may apply for a court order asking for a video to be released. Unlike the special provision for people who appear in the video, though, there is no expedited review. 

When considering whether or not to release the video, the court is to consider whether there is a “compelling public interest” in releasing it. The court also has to consider whether releasing it would identify a confidential informant, harm someone’s reputation, hinder future court proceedings, or interfere with an ongoing investigation. 

Q: Can the police department release video under the new law? 

A: No. Only a court will be able to determine whether or not a video should be released. Even if the police want – or need – to release a video to the public, they will have to obtain a court order to do so. 

Q: Will a city council be able to release video under the new law?

A: No. Only a court will be able to determine whether or not a video should be released. Even if the council wants to release a video to the public, they will have to obtain a court order. 

If McCrory signs the bill, it will become effective Oct. 1, 2016. 

The bill fixes one problem that has frustrated communities across the state since body cameras first began to be used. Some police departments have claimed that body camera videos are a part of an officer’s personnel file and therefore not subject to release. HB972 makes plain that they are not personnel records. 

It then removes body camera, dash camera and surveillance video from the public record.

The bill creates a limited right of access for people who appear in the videos to see them. The chief law enforcement officer will have discretion to allow the person access, but will not be able to provide them with a copy. If the chief law enforcement officer declines to provide access, a written explanation must be provided. And the person can petition a Superior Court judge for review. 

The bill creates a separate process for release of video. Anyone who wishes to have a video released, including the chief law enforcement officer, must petition a Superior Court judge. If the judge finds that there is a compelling pubilc interest in having the videos released, the court then can order public access. 

Prior to the bill’s passage, body camera, dash camera and surveillance video were public records unless one of the specific exemptions to the public records law applied to that particular video.