In re: The McClatchy Co. ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-841
No. COA21-716
Filed 20 December 2022
Alamance County, No. 21 CVS 15
IN THE MATTER OF: THE MCCLATCHY COMPANY, LLC, d/b/a “The News &
Observer;” CAROLINA PUBLIC PRESS, INC., d/b/a “Carolina Public Press;”
CAPITOL BROADCASTING COMPANY, INCORPORATED, d/b/a “WRAL-TV;” LEE
ENTERPRISES, d/b/a “The News & Record;” HEARST PROPERTIES, INC., d/b/a
“WXII;” GANNETT CO., INC., d/b/a “The Burlington Times News;” MACKENZIE
WILKES, JOHN NORCROSS, and GRACE TERRY, of Elon News Network,
petitioners.
Appeal by respondent from order entered 15 June 2021 by Judge Andrew H.
Hanford in Alamance County Superior Court. Heard in the Court of Appeals
7 June 2022.
Envisage Law, by Adam P. Banks and Anthony J. Biller, for respondent-
appellant.
Stevens Martin Vaughn & Tadych, PLLC, by Michael J. Tadych, Hugh Stevens,
C. Amanda Martin, and Elizabeth J. Soja, for petitioners-appellees.
TYSON, Judge.
¶1 The Graham Police Department (“GPD”) appeals from the trial court’s order
authorizing and ordering the release of all custodial law enforcement agency
recordings petitioned by media Petitioners pursuant to N.C. Gen. Stat. § 132-1.4A(g)
(2021). We vacate the order and remand for additional findings of fact.
I. Background
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¶2 A group of people participated in a “I am Change” march in Graham on 31
October 2020. The organizers of the march secured a permit to march, but were not
authorized to close and were instructed not to block the public streets of Graham for
the march. When marchers refused to clear an intersection of streets following
multiple requests, GPD deployed Oleoresin Capsicum (“pepper spray”) canisters to
clear the street.
¶3 The marchers moved to the grounds of the Historic Alamance County
Courthouse. Speeches were given by organizers and designated speakers. Before the
speeches were concluded, GPD officers and sheriff’s deputies discovered a gas-
powered generator providing electricity for a sound system. The generator was
operating within two feet of a gas container, in violation of the fire code. Officers
attempted to disconnect the generator, but attendees resisted the officers’ efforts. The
event was declared to be unsafe, dispersal orders were issued, but went unheeded.
GPD officers and Alamance County Sheriff’s deputies arrested 23 protesters.
¶4 The McClatchy Company, LLC, d/b/a The News and Observer Publishing Co.,
filed an amended petition in Alamance County Superior Court seeking release of
custodial law enforcement agency recordings under N.C. Gen. Stat. § 132-1.4A(g) on
2 March 2021. Joining as petitioners were: Carolina Public Press, Inc., d/b/a Carolina
Public Press; Capitol Broadcasting Company, Incorporated, d/b/a WRAL-TV; Lee
Enterprises, d/b/a News & Record of Greensboro; Hearst Properties, d/b/a WXII;
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Gannett Co., Inc., d/b/a/ The Burlington Times-News; and Mackenzie Wilkes, John
Norcross, and Grace Terry of the Elon News Network (collectively with The
McClatchy Company, LLC (“Petitioners”).
¶5 Petitioners sought from the Alamance County Sheriff (“ACS”) and GPD
(collectively “Respondents’) to:
release of all law enforcement and other recordings leading
up to, during and after the “I am Change” march in
Graham, NC, occurring on 31 October 2020 from the time
the first contact was made with marchers, spectators or
media on that date until the last member of law
enforcement left the scene. Petitioners’ requests include,
but are not limited to, recordings from all body worn
cameras, dashboard cameras, hand-held recording devices
of any kind, drones/unmanned aerial vehicles, stationary
cameras, or any other video or audio recording device
operated by or on behalf of a law enforcement agency or law
enforcement agency personnel as defined by G.S. 1[32]-
1.4A(a)(6) when carrying out law enforcement
responsibilities at the time of first contact, at the
courthouse and around Court Square.
¶6 The matter was scheduled for hearing on 8 March 2021. Respondents moved
for a continuance, which was allowed. The hearing was rescheduled for 26 April 2021.
The trial court also filed an “Order to Provide Custodial Law Enforcement Agency
Recording for In-Camera Review”, which required Respondents to provide the trial
court with a copy of the petitioned recordings “on or before” 12 April 2021 “along with
a list of all law enforcement personnel whose image or voice is in the recording[.]”
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¶7 Respondents were also required to give notice of the petition and hearing “to
any law enforcement agency personnel whose image or voice was shown or captured
in the recording and to the head of that person’s employing law enforcement
agency[,]” and to provide the trial court and petitioners’ counsel “with a list
identifying those portions of the requested recordings to which law enforcement
objects to release and all bases for those objections upon provision of the subject
recordings for in camera review”.
¶8 Neither ACS nor GPD appealed this order. ACS submitted its recordings for
in-camera review on 18 March 2021. ACS did not file any objections with its
submission. GPD submitted its recordings after obtaining an extension of time on 23
April 2021.
¶9 GPD listed the following objections to release of the petitioned recordings: (1)
“pursuant to N.C.G.S. § 132-1.4A(g)(1)[,]” on the basis of lack of a compelling public
interest, since the events at issue had occurred “more than 6 months ago” and were
“no longer ‘newsworthy’ ”; (2) “pursuant to N.C.G.S. § 132-1.4A(g)(3)[,]” because
petitioners did not seek to “ ‘obtain evidence to determine legal issues in a current or
potential court proceeding’ ”; (3) “pursuant to N.C.G.S. § 132-1.4A(g)(5)[,]” because
the “expansive nature of [p]etitioner[s’] request ensures extraneous footage of march
participants will be released[,]” creating “the risk of harm to ‘reputation’ or ‘safety’ of
protest participants”; and (5) “pursuant to N.C.G.S. § 132-1.4A(g)(6)[,]” on the basis
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that “such release creates a threat to the ‘fair, impartial, and orderly administration
of justice[ ]’” because the “enclosed CLE Recordings contain footage of all individuals
arrested by GPD on October 31, 2020.” Respondent-GPD also objected to the release
of specific footage depicting specific individuals, who were then facing criminal
charges following their arrests on 31 October 2020.
¶ 10 The trial court conducted an in-camera review of the submitted recordings
between 21-28 May 2021 and scheduled a hearing for 10 June 2021. At the hearing,
Respondents argued the following objections against release of the petitioned
recordings: (1) law enforcement recordings “are not public records” under N.C. Gen.
Stat. § 132-1.4A; (2) “only personal representatives have an absolute right
to . . . access . . . these videos”; (3) “[t]he burden [is] slightly less” for “authorized
individuals to obtain access to the video[,]” whereas the burden under subsection “g”
of the statute “is a bit higher”; (4) the trial court, “in its discretion, can place any sort
of additional restriction on top of the release” of such recordings; (6) the matter was
no longer newsworthy; (7) the footage sought was available elsewhere; (8) petitioners’
request was not specific, but rather “a generic request for all video”; (9) release of the
recordings may affect the privacy interests of the individuals depicted therein; (10)
there were criminal cases still pending following the 31 October 2020 events; (11) the
recordings captured “extraneous footage”; (12) “these videos are available” “for any
criminal proceeding” and that petitioners had “not obtained . . . consent” from the
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individuals depicted therein to release the footage; (13) release of the petitioned
recordings could “reveal information regarding a person that is of a highly
sensitive . . . nature” and “may harm the reputation or jeopardize the safety of a
person”; (14) “these videos could create a serious threat to the fair and impartial and
orderly administration of justice”; and, (15) “releasing this video now interrupts the
fair and orderly discovery process” of an ongoing federal lawsuit.
¶ 11 At the close of all arguments, the trial court stated the following:
I will inform everyone that this Court has given this
decision great consideration and has not taken this
decision lightly in any way. And I’ll refer you to Alamance
CV 271 (sic).
....
The Court having considered the applicability of all the
standards of G.S. 132[ ]-1.4A(g), has determined the
following: That the release of the information is necessary
to advance a compelling public interest. The Court finds
that there is a compelling public interest in the
accountability and transparency of law enforcement
officers and that this factor weighs in favor of release.
No. 2, The recording contains information that is otherwise
confidential or exempt from disclosure or release under
state or federal law. This Court finds this factor is not
relevant and does not impact the Court’s decision.
No. 3, The person requesting release is seeking to obtain
evidence to determine legal issues in a current or potential
court proceeding. The Court finds this factor is not
relevant and does not impact this decision.
No. 4, Release would reveal information regarding a person
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that is of a highly sensitive and personal nature. This
Court finds that this factor weighs against release.
No. 5, That release may harm the reputation or jeopardize
the safety of a person. This Court finds this factor also to
weigh against release.
No. 6, That release would create a serious threat to the fair
and orderly administration of justice. This court finds that
this factor does weigh in favor of release.
No. 7, Confidentiality is necessary to protect an active
internal criminal investigation or potential internal or
criminal investigation. This Court finds this factor is not
relevant and does not impact the Court’s decision.
No. 8, There is good cause shown to release all portions of
the recording. This Court finds that the photos and the
recordings speak for themselves, and this Court does not
have the authority to [c]ensor this information absent a
legitimate or compelling state interest not to do so. Most
importantly this Court gives great weight to transparency
and public accountability with regard to police action and
considers a failure to release this information to possibly
undermine the public interest and confidence in the
administration of justice.
In light of the foregoing findings of fact, the Court
concludes that the media is authorized to the release of all
of the photos and recordings. It is therefore ordered that
this petition is granted. That the custodial law enforcement
agencies involved shall release all photos and custodial law
enforcement recordings to the media and that’s the order of
the Court.
(emphasis supplied).
¶ 12 The trial court filed its written “Order on Petition for Release of Custodial Law
Enforcement Agency Recording” on 15 June 2021. (R pp 216-17) The order contains
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determinations consistent with the court’s rendering in open court regarding “the
applicability of all of the standards in G.S. 132-1.4A(g)[.]” The trial court found:
The photos/recordings speak for themselves. This Court
does not have the authority to censor the photos/recordings
absent a compelling governmental interest and none was
shown. This Court gives great weight to transparency and
public accountability of police action and failure to release
the photos/recordings would undermine the public trust
and confidence in the administration of justice.
(emphasis supplied)
¶ 13 The trial court ordered Respondents to release “ALL recordings and
photographs as indicated on the submissions made to the Court by the custodial law
enforcement agencies and without redaction or alteration on or before 2:00 p.m. on
Friday June 25, 2021.”
¶ 14 GPD appealed the 15 June 2021 “Order on Petition for Release of Custodial
Law Enforcement Agency Recording” on 23 June 2021. GPD filed a “Motion for Stay
of Order Directing Release of Custodial Law Enforcement Recording Pending Appeal”
on 25 June 2021, which was amended on 30 June 2021. Petitioners filed a Motion to
Show Cause on 6 July 2021. The trial court granted GPD’s motion to stay the 15
June 2021 order and denied Petitioners’ Motion to Show Cause. GPD appeals.
II. Jurisdiction
¶ 15 This Court possesses jurisdiction pursuant to N.C. Gen. Stat. § 7A-27(b)(1)
(2021).
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III. Issue
¶ 16 GPD argues Petitioners’ petition was overly broad under N.C. Gen. Stat. § 132-
1.4A (2021); the trial court improperly imposed a de-facto burden and then shifted it
onto Respondents; the trial court misapplied the law and imposed the incorrect legal
standard in ordering the unredacted release of all portions of all videos and
recordings; the trial court abused its discretion in failing to take reasonable steps to
protect against the release of information of a highly sensitive personal nature; and,
the trial court frustrated the legislative intent behind N.C. Gen. Stat. § 132-1.4A.
IV. Standard of Review
¶ 17 N.C. Gen. Stat. § 132.1.4A(g) provides: “The [trial] court shall release only those
portions of the recording that are relevant to the person’s request, and may place any
conditions or restrictions on the release of the recording that the court, in its
discretion, deems appropriate.” N.C. Gen. Stat. § 132.1.4A(g) (emphasis supplied).
The statute mandates express limitations on the release of otherwise non-public and
non-personnel records, specifying courts “shall release only those portions . . .
relevant,” and further provides the trial court “may place any conditions or
restrictions on the release.” Id.V. Analysis
¶ 18 To analyze the parties’ arguments, an examination of N.C. Gen. Stat.
§ 132.1.4A is required. “The principal goal of statutory construction is to accomplish
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the legislative intent.” Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548 S.E.2d 513, 517
(2001) (citation omitted). “The best indicia of that intent are the [plain] language of
the statute . . . , the spirit of the act and what the act seeks to accomplish.” Concrete
Co. v. Bd. of Comm’rs, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980) (citations
omitted). “[S]tatutes in pari materia must be read in context with each other.” Cedar
Creek Enters. v. Dep’t of Motor Vehicles, 290 N.C. 450, 454, 226 S.E.2d 336, 338 (1976)
(citation omitted).
¶ 19 “When construing legislative provisions, this Court looks first to the plain
meaning of the words of the statute itself[.]” State v. Ward, 364 N.C. 157, 160, 694
S.E.2d 729, 731 (2010) (citation omitted). “Interpretations that would create a
conflict between two or more statutes are to be avoided, and statutes should be
reconciled with each other whenever possible.” Taylor v. Robinson, 131 N.C. App. 337,
338, 508 S.E.2d 289, 291 (1998) (internal citations, quotation marks, and ellipses
omitted).
¶ 20 Further, “where a literal interpretation of the language of a statute will lead
to absurd results, or contravene the manifest purpose of the Legislature, as otherwise
expressed, the reason and purpose of the law shall control.” State v. Beck, 359 N.C.
611, 614, 614 S.E.2d 274, 277 (2005) (internal quotation marks omitted) (quoting
Mazda Motors v. Sw. Motors, 296 N.C. 357, 361, 250 S.E.2d 250, 253 (1979)).
¶ 21 Release of law enforcement photos and recordings is strictly limited by statute
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and are neither public records subject to uncontrolled release nor personnel records
under our General Statutes. N.C. Gen. Stat. § 132-1.4A(b).
¶ 22 N.C. Gen. Stat. § 132-1.4A(c) provides the limited categories of persons who
are authorized to seek release of the law enforcement recordings and records:
(c) Disclosure; General. — Recordings in the custody of a
law enforcement agency shall be disclosed only as provided
by this section. Recordings depicting a death or serious
bodily injury shall only be disclosed as provided in
subsections (b1) through (b3) of this section.
A person requesting disclosure of a recording must make a
written request to the head of the custodial law
enforcement agency that states the date and approximate
time of the activity captured in the recording or otherwise
identifies the activity with reasonable particularity
sufficient to identify the recording to which the request
refers.
The head of the custodial law enforcement agency may only
disclose a recording to the following:
(1) A person whose image or voice is in the recording.
(2) A personal representative of an adult person whose
image or voice is in the recording, if the adult person
has consented to the disclosure.
(3) A personal representative of a minor or of an adult
person under lawful guardianship whose image or voice
is in the recording.
(4) A personal representative of a deceased person
whose image or voice is in the recording.
(5) A personal representative of an adult person who is
incapacitated and unable to provide consent to
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disclosure.
When disclosing the recording, the law enforcement agency
shall disclose only those portions of the recording that are
relevant to the person’s request. A person who receives
disclosure pursuant to this subsection shall not record or
copy the recording.
N.C. Gen. Stat. § 132-1.4A(c) (2021) (emphasis supplied).
¶ 23 The release of recordings in the custody of a law enforcement agency under any
section sequentially requires the petitioning party to show it qualifies and the trial
court to so find the basis of that qualification under N.C. Gen. Stat. § 132-1.4A(c). See
N.C. Gen. Stat. § 132-1.4A(f) (“Notwithstanding the provisions of subsection (g) of
this section, a person authorized to receive disclosure pursuant to subsection (c) of this
section, or the custodial law enforcement agency, may petition the superior court in
any county where any portion of the recording was made for an order releasing the
recording to a person authorized to receive disclosure.. . . If the court determines that
the person to whom release of the recording is requested is a person authorized to
receive disclosure pursuant to subsection (c) of this section, the court shall consider the
standards set out in subsection (g) of this section and any other standards the court
deems relevant in determining whether to order the release of all or a portion of the
recording.”) (emphasis supplied).
¶ 24 The restrictions and qualifications required to release under N.C. Gen. Stat. §
132-1.4A(c) are re-stated in the AOC-CV-271 Form, upon which the trial court
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entered its judgment. The trial court failed to check any of the boxes on Petitioners’
eligibility or relevance and failed to make any oral findings of eligibility to release on
the transcript in open court. In the absence of threshold eligibility and statutorily-
required findings, the order of the trial court is vacated, and the cause is remanded
for additional findings of fact and conclusions of law consistent with the statute and
this opinion.
¶ 25 We address additional arguments raised by GPD, because they are likely to
occur on remand. GPD argues the trial court erred by not acting to avoid the release
of “information of a highly sensitive personal nature.” The trial court, while
analyzing each standard of potential harm laid out by the statute, concluded under
the fourth and fifth standards of N.C. Gen. Stat. § 132-1.4A(g)—“[r]elease would
reveal information regarding a person that is of a highly sensitive and personal
nature” and “release may harm the reputation or jeopardize the safety of a person”—
weighed against the release of the petitioned recordings. The statute limits the trial
court’s discretion in analyzing the standards laid out therein and in determining, as
a result of that analysis, whether to release any, all, or some or none of the petitioned
recordings. Petitioner is entitled to release of law enforcement recordings, only after
the trial court’s finding the statutory category applicable to the petition.
¶ 26 The trial court stated in open court, at the close of its eight-standard analysis:
“[T]his Court does not have the authority to [c]ensor this information absent a
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legitimate or compelling state interest not to do so.” The trial court also stated in the
June Order: “This Court does not have the authority to censor the photos/recordings
absent a compelling governmental interest and none was shown.” This notion flips
the express restrictions and application of the statute on its head.
¶ 27 N.C. Gen. Stat. § 132-1.4A(g) provides: “The court shall release only those
portions of the recording that are relevant to the person’s request, and may place any
conditions or restrictions on the release of the recording that the court, in its
discretion, deems appropriate.” N.C. Gen. Stat. § 132-1.4A(g) (emphasis supplied).
¶ 28 This duty by the trial court was further-reiterated in In re Custodial Law
Enforcement Recording Sought by City of Greensboro, in which this Court concluded
a trial court “did not abuse its discretion in initially placing and later refusing to
modify a restriction on release of body-cam footage” under N.C. Gen. Stat. § 132-
1.4A(g). 266 N.C. App. 473, 479, 833 S.E.2d 1, 4 (2019).
¶ 29 The trial court erred by failing to make the required statutory findings. It is
also clear from the record the court misapplied the statute and precedents by failing
to exercise its discretion. “A court does not exercise its discretion when it believes it
has no discretion or acts as a matter of law.” State v. Maness, 363 N.C. 261, 278, 677
S.E.2d 796, 807 (2009) (citation omitted). Petitioner carries and maintains the
burden of eligibility, specificity, and relevance under the statute. Respondents have
no burden on remand. See N.C. Gen. Stat. § 132-1.4A(c).
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VI. Conclusion
¶ 30 The trial court failed to make required statutory findings to show under which
statutory category Petitioner is entitled to release any of non-public and non-
personnel law enforcement recordings records relevant to its request. The trial court
also abused its discretion by not redacting irrelevant recordings and in authorizing
the immediate and unrestricted release of all of law enforcement recordings
requested in the 15 June 2021 order. The trial court also erred by stating and
concluding “it has no discretion” under the statute. Maness, 363 N.C. at 278, 677
S.E.2d at 807.
¶ 31 The order appealed from is vacated and this cause is remanded for additional
findings of facts and conclusions of law consistent with the statute and this opinion.
The 13 July 2021 stay the trial court entered remains in effect pending final
resolution. It is so ordered.
VACATED AND REMANDED.
Judge GORE concurs.
Judge ARROWOOD dissents by separate opinion.
No. COA21-716 – In re: The McClatchy Co., LLC
ARROWOOD, Judge, dissenting.
¶ 32 I dissent from the majority opinion vacating and remanding the trial court’s
order allowing for the release of custodial law enforcement agency (“CLEA”)
recordings petitioned by a group of media companies (“petitioners”). Specifically, the
majority misconstrues the plain language of the statute at issue, N.C. Gen.
Stat. § 132-1.4A, in such a way that if allowed to stand it would foreclose members of
the media from ever filing a successful petition for the release of any CLEA recording
in the future. Because I believe this was never the intent of the statute and is not
supported by the plain language of the statue, I dissent. For all the following reasons,
I would affirm the trial court’s order.
I. Background
¶ 33 The factual preamble of this case is widely known, as the events at issue made
local, national, and international headlines.1 Accordingly, I find it important for our
opinion to provide details as to what has led to this appeal.
¶ 34 On Saturday, 31 October 2020, the last day of early voting in the 2020 U.S.
general elections, a group of approximately 200 people participated in a march to the
polls, dubbed the “I Am Change” march, in Graham, North Carolina. The march was
secured with a permit and organized by Reverend Greg Drumwright (“Rev.
1Indeed, as the record on appeal provides, these events were covered not only by The News
& Observer, WRAL, WXII12, The Times News, and Elon News Network, but also by The
Washington Post and Newsweek.
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Drumwright”), a Greensboro pastor and organizer. Also participating were then
mayor of Burlington Ian Baltutis, two candidates for local office, and a number of
elderly citizens and children. “With marchers walking by two’s and three’s, the
procession snaked through neighborhoods on sidewalks and road shoulders, past one
polling place and toward the early-voting site that had been the planned endpoint of
Saturday’s march.”
¶ 35 “At one point, the marchers held a moment of silence in the street in honor of
George Floyd, the Black man killed while in police custody in Minneapolis earlier
th[at] summer.” Then, “law-enforcement officers in riot gear and gas masks insisted
demonstrators move off the street and clear county property, despite [the] permit
authorizing their presence.” “[D]eputies and police officers used pepper spray on the
crowd and began arresting people.” “Several children in the crowd were affected by
the pepper spray.”
¶ 36 “The crowd then moved” to a historic courthouse located in Court Square,
“where speeches were being given.” “But before speeches concluded, Alamance
County sheriff’s deputies began dismantling the sound system and telling the crowd
to disperse.” Deputies stated “that the permit had been revoked[,]” but “didn’t give
the crowd a reason for demanding that they disperse” or for the permit revocation. It
would later be reported that the “generator and gas can” at issue “were forbidden
under the terms of the event permit.”
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¶ 37 “Deputies arrested several organizers who refused to disperse, and Graham
officers forced everyone out of Court Square, including bystanders, with additional
pepper spray.” “Both the police department and the sheriff’s office have said their
use of force was justified.” According to the Graham Police Department’s community
engagement and diversity coordinator, “[w]hen deputies tried to disconnect the sound
equipment, an officer was assaulted, and the officer deployed her pepper spray as she
fell to the ground.” At this point, she contends, marchers were “ ‘pulling and shoving’
officers, who then used more pepper spray to get the crowd to disperse.”
¶ 38 By the end of the day on 31 October 2020, “[a]t least 12 people were arrested[,]”
including Rev. Drumwright, who would later face felony charges. “Most people were
charged with failing to disperse on command.” One woman “was charged with
misdemeanor riot after she began to sing a freedom song into a megaphone outside
the county jail, and a man was charged with attempting to stop officers from arresting
her.” The News & Observer reported “[n]one of the arrest records provided to
reporters described an assault on an officer.”
¶ 39 “The event garnered international media attention and led to two federal
lawsuits[,]” one of which was commenced by Rev. Drumwright and “allege[d] voter
intimidation and coercion by law enforcement.” In the aftermath of this event,
“national experts on policing mass demonstrations condemned the way Graham
police and Alamance County sheriff’s deputies handled the ‘I Am Change’ march,”
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finding ‘[t]he use of pepper spray against a group that included children and older
people” to be “ ‘stunning[.]’ ”
¶ 40 The majority otherwise correctly characterizes the procedural posture of this
case. Indeed, on 2 March 2021, petitioners filed an amended petition under N.C. Gen.
Stat. § 132-1.4A(g) in Alamance County Superior Court, seeking from the Alamance
County Sheriff (“respondent-ACS”) and the Graham Police Department (“respondent-
GPD”) (collectively “respondents”) the “release of all law enforcement and other
recordings leading up to, during and after the ‘I am Change’ march in Graham, NC,
occurring on 31 October 2020 from the time the first contact was made with
marchers, spectators or media on that date until the last member of law enforcement
left the scene.”
¶ 41 Thereafter, among other events, the trial court filed an “Order to Provide
Custodial Law Enforcement Agency Recording for In-Camera Review” (the “March
Order”), respondent-GPD provided an assortment of written objections to the
petition, the trial court conducted an in-camera review of the CLEA recordings at
issue, and a hearing was held on 10 June 2021, where respondents raised another
assortment of objections to the petition.
¶ 42 At the close of all arguments, the trial court stated the following:
I will inform everyone that this Court has given this
decision great consideration and has not taken this
decision lightly in any way. And I’ll refer you to Alamance
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CV 271.
....
The Court having considered the applicability of all the
standards of G.S. 132[ ]-1.4A(g), has determined the
following: That the release of the information is necessary
to advance a compelling public interest. The Court finds
that there is a compelling public interest in the
accountability and transparency of law enforcement
officers and that this factor weighs in favor of release.
No. 2, The recording contains information that is otherwise
confidential or exempt from disclosure or release under
state or federal law. This Court finds this factor is not
relevant and does not impact the Court’s decision.
No. 3, The person requesting release is seeking to obtain
evidence to determine legal issues in a current or potential
court proceeding. The Court finds this factor is not
relevant and does not impact this decision.
No. 4, Release would reveal information regarding a person
that is of a highly sensitive and personal nature. This
Court finds that this factor weighs against release.
No. 5, That release may harm the reputation or jeopardize
the safety of a person. This Court finds this factor also to
weigh against release.
No. 6, That release would create a serious threat to the fair
and orderly administration of justice. This court finds that
this factor does weigh in favor of release.
No. 7, Confidentiality is necessary to protect an active
internal criminal investigation or potential internal or
criminal investigation. This Court finds this factor is not
relevant and does not impact the Court’s decision.
¶ 43 Additionally, the trial court made the following statement as to the eighth
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factors of its analysis:
No. 8, There is good cause shown to release all portions of
the recording. This Court finds that the photos and the
recordings speak for themselves, and this Court does not
have the authority to [c]ensor this information absent a
legitimate or compelling state interest not to do so. Most
importantly this Court gives great weight to transparency
and public accountability with regard to police action and
considers a failure to release this information to possibly
undermine the public interest and confidence in the
administration of justice.
The trial court then ordered the release “of all photos and recordings.”
¶ 44 The trial court filed a written “Order on Petition for Release of Custodial Law
Enforcement Agency Recording” on 15 June 2021 (the “June Order”), in which it
made determinations consistent with its ruling in open court and added:
The photos/recordings speak for themselves. This Court
does not have the authority to censor the photos/recordings
absent a compelling governmental interest and none was
shown. This Court gives great weight to transparency and
public accountability of police action and failure to release
the photos/recordings would undermine the public trust
and confidence in the administration of justice.
Accordingly, the trial court ordered for respondents to release “ALL recordings and
photographs as indicated on the submissions made to the Court by the custodial law
enforcement agencies and without redaction or alteration on or before 2:00 p.m. on
Friday, June 25, 2021.”
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¶ 45 On 23 June 2021, respondent-GPD gave notice of appeal from the June Order.
Pertinently, this appeal made no mention of the March Order. Respondent-GPD filed
a “Motion for Stay of Order Directing Release of Custodial Law Enforcement
Recording Pending Appeal” on 25 June 2021, which it amended on 30 June 2021 and
filed along with a memorandum in support of the motion. In this memorandum,
respondent-GPD argued, among other things, that the trial court had “mistakenly
placed the burden of providing a compelling public interest on the custodial law
enforcement agency.” Both respondents filed a joint motion to amend the June Order
on 6 July 2021. Petitioners filed a Motion to Show Cause also on 6 July 2021. On
13 July 2021, the trial court granted respondent-GPD’s motion to stay the June
Order, denied respondents’ motion to amend the June Order, and denied petitioners’
Motion to Show Cause. Respondent-ACS did not appeal.
II. Discussion
¶ 46 On appeal, respondent-GPD argues: that petitioners’ petition was overly broad
under N.C. Gen. Stat. § 132-1.4A; that the trial court “improperly imposed de-facto
burden shifting” onto respondents; that the trial court “misapplied the law and
imposed the incorrect standard . . . [i]n ordering the unredacted release of all portions
of all videos”; that the trial court “erred and abused its discretion in failing to take
reasonable steps to protect against the release of information of a highly sensitive
personal nature”; that the trial court abused its discretion by releasing irrelevant and
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extraneous footage; and that, in abusing its discretion, the trial court “frustrated the
legislative intent behind [N.C. Gen. Stat. §] 132-1.4A.”
A. Jurisdiction
¶ 47 As a preliminary matter, the majority fails to address a jurisdictional issue
presented by this appeal. Respondent-GPD appealed from the June Order and
designated its appeal accordingly. In this appeal, respondent-GPD makes no mention
of the March Order. However, in its appellate brief, respondent-GPD raises
arguments—specifically, that the trial court erred by engaging in “de-facto burden
shifting” and that the trial court frustrated the legislative intent of N.C. Gen. Stat. §
132-1.4A—it had not argued in relation to the June Order. Rather, these arguments
appeared in respondent-GPD’s submission of the petitioned recordings, which related
to the March Order, and in its amended motion for staying the June Order, which, by
its very nature, followed the June Order.
¶ 48 Under our Rules of Appellate Procedure, any notice of appeal:
shall specify the party or parties taking the appeal; shall
designate the judgment or order from which appeal is
taken and the court to which appeal is taken; and shall be
signed by counsel of record for the party or parties taking
the appeal, or by any such party not represented by counsel
of record.
N.C.R. App. P. 3(d).
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¶ 49 “The appellant’s compliance with the jurisdictional rules governing the taking
of an appeal is the linchpin that connects the appellate division with the trial division
and confers upon the appellate court the authority to act in a particular case.”
Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 197, 657
S.E.2d 361, 364-65 (2008) (citations omitted). “A jurisdictional default, therefore,
precludes the appellate court from acting in any manner other than to dismiss the
appeal.” Id. at 197, 657 S.E.2d at 365 (citations omitted).
¶ 50 Because part of respondent-GPD’s appeal is defective under our Rules of
Appellate Procedure, and those defects are jurisdictional in nature, I would have
dismissed the arguments regarding burden shifting and frustration of legislative
purpose and proceeded with reviewing respondent-GPD’s remaining arguments on
appeal. See id.B. Standard of Review
¶ 51 As an additional preliminary matter, the majority fails to address the fact that,
among its appellate arguments, respondent-GPD also claims that the appropriate
standard of review in this case is de novo. This is incorrect.
¶ 52 The statute at issue itself expressly states: “The [trial] court shall release only
those portions of the recording that are relevant to the person’s request, and may
place any conditions or restrictions on the release of the recording that the court, in
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its discretion, deems appropriate.” N.C. Gen. Stat. § 132-1.4A(g) (2021) (emphasis
added). Accordingly, this Court would review for abuse of discretion.
¶ 53 Having eliminated some of respondent-GPD’s arguments for failure to comply
with our Rules of Appellate Procedure, the only remaining arguments this Court
should have reviewed may be summed as follows: whether the trial court abused its
discretion in releasing all the petitioned footage, “extraneous” footage, or footage
containing “information of a highly sensitive personal nature.”
C. N.C. Gen. Stat. § 132-1.4A
¶ 54 The majority correctly cites the following: “The best indicia of [legislative]
intent are the [plain] language of the statute . . . , the spirit of the act and what the
act seeks to accomplish.” Coastal Ready-Mix Concrete Co. v. Bd. of Comm’rs, 299 N.C.
620, 629, 265 S.E.2d 379, 385 (1980) (citation omitted). “When construing legislative
provisions, this Court looks first to the plain meaning of the words of the statute
itself[.]” State v. Ward, 364 N.C. 157, 160, 694 S.E.2d 729, 731 (2010). However,
what the majority fails to do is to actually apply this precedent; as a result of this
failure, the majority misconstrues the plain language of N.C. Gen. Stat. § 132-1.4A,
with avoidable and unnecessary results.
¶ 55 The majority contends that “[t]he release of recordings in the custody of a law
enforcement agency under any section sequentially requires the petitioning party to
show it qualifies and the trial court to so find the basis of that qualification under
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N.C. Gen. Stat. § 132-1.4A(c).” This is simply not correct.
¶ 56 Subsection (c) of N.C. Gen. Stat. § 132-1.4A, which addresses disclosure of
CLEA recordings, reads as follows:
(c) Disclosure; General.--Recordings in the custody of a law
enforcement agency shall be disclosed only as provided
by this section. . . .
A person requesting disclosure of a recording must
make a written request to the head of the custodial law
enforcement agency that states the date and
approximate time of the activity captured in the
recording or otherwise identifies the activity with
reasonable particularity sufficient to identify the
recording to which the request refers.
The head of the custodial law enforcement agency may only
disclose a recording to the following:
(1) A person whose image or voice is in the recording.
(2) A personal representative of an adult person whose
image or voice is in the recording, if the adult person
has consented to the disclosure.
(3) A personal representative of a minor or of an adult
person under lawful guardianship whose image or voice
is in the recording.
(4) A personal representative of a deceased person whose
image or voice is in the recording.
(5) A personal representative of an adult person who is
incapacitated and unable to provide consent to
disclosure.
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N.C. Gen. Stat. § 132-1.4A(c) (emphasis added). In summary, subsection (c) of the
statute provides a list of those persons entitled to disclosure of CLEA recordings,
which is separate and distinct from release of said recordings. This distinction is
further emphasized by the existence and contents of subsections (f) and (g).
¶ 57 Subsection (f) reads as follows:
(f) Release of Recordings to Certain Persons; Expedited
Process.--Notwithstanding the provisions of subsection
(g) of this section, a person authorized to receive
disclosure pursuant to subsection (c) of this section, or
the custodial law enforcement agency, may petition the
superior court in any county where any portion of the
recording was made for an order releasing the recording
to a person authorized to receive disclosure. . . . If the
petitioner is a person authorized to receive disclosure,
notice and an opportunity to be heard shall be given to
the head of the custodial law enforcement agency.
Petitions filed pursuant to this subsection shall be set
down for hearing as soon as practicable and shall be
accorded priority by the court.
The court shall first determine if the person to whom
release of the recording is requested is a person
authorized to receive disclosure pursuant to subsection
(c) of this section. . . . If the court determines that the
person is not authorized to receive disclosure pursuant
to subsection (c) of this section, there shall be no right of
appeal and the petitioner may file an action for release
pursuant to subsection (g) of this section.
N.C. Gen. Stat. § 132-1.4A(f) (emphasis added). In summary, subsection (f) addresses
how a person who is entitled to disclosure of CLEA recordings under subsection (c)
would go about petitioning for the release thereof, and also states how all other
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persons excluded by subsection (c) are provided a separate means to file an action for
release, articulated by subsection (g).
¶ 58 Subsection (g) of the statute addresses exactly how any other person or entity
excluded by subsection (c) would go about petitioning for the release of CLEA
recordings; it speaks for itself and reads, in pertinent part, as follows:
(g) Release of Recordings; General; Court Order Required.-
-Recordings in the custody of a law enforcement agency
shall only be released pursuant to court order. Any
custodial law enforcement agency or any person
requesting release of a recording may file an action in
the superior court in any county where any portion of
the recording was made for an order releasing the
recording.
N.C. Gen. Stat. § 132-1.4A(g) (emphasis added).
¶ 59 Though the statute is long-winded, it is not complex. The statute plainly
distinguishes between those persons who are entitled to disclosure of CLEA
recordings, and those who are not; a person who is entitled to disclosure under
subsection (c) may petition for release under subsection (f); all other persons excluded
by subsection (c) may petition for release under subsection (g).
¶ 60 Indeed, such distinction, which the majority either ignores or fails to perceive,
is plainly summarized in each subsection header: “Disclosure; General” for
subsection (c); “Release of Recordings to Certain Persons; Expedited Process” for
subsection (f); and “Release of Recording; General” for subsection (g).
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¶ 61 This plain reading of N.C. Gen. Stat. § 132-1.4A was further reiterated by this
Court in In re Custodial Law Enforcement Recording Sought by City of Greensboro, a
case which the majority cites, in the following statement:
Our General Assembly has provided that police body-cam
footage is neither a public nor a personnel record, [under]
N.C. Gen. Stat. § 132-1.4A(b) . . . , and that only those
depicted in the video and their personal representatives
have an absolute right to view the footage, [under] N.C.
Gen. Stat. § 132-1.4A(c) . . . . The General Assembly also
provided that anyone else wanting to view police body-cam
footage may not do so unless that individual obtains a court
order[,] [under] N.C. Gen. Stat. § 132-1.4A(g) . . . .
Matter of Custodial L. Enf’t Recording Sought by City of Greensboro, 266 N.C. App.
473, 475, 833 S.E.2d 1, 2 (2019) (emphasis added) (citing N.C. Gen. Stat. § 132-
1.4A(b), (c), (g) (2016)).
¶ 62 Here, petitioners do not fall within any of the enumerated categories of persons
entitled to disclosure as a matter of right provided by subsection (c) of the statute.
See N.C. Gen. Stat. § 132-1.4A(c). This, however, does not categorically bar
petitioners from being able to seek, and possibly obtain, release of CLEA recordings.
Rather, petitioners must obtain a court order. N.C. Gen. Stat. § 132-1.4A(g). That is
precisely what petitioners have done here: because they were not entitled to
disclosure as a matter of right, they petitioned the trial court under subsection (g) in
hopes of a favorable order. Accordingly, the majority’s contention that the case should
be remanded due to an “absence of statutorily-required findings” is incorrect, as it
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wrongly applies the requirements for identifying whether a petitioner is a person
enumerated by subsection (c) to these petitioners.
¶ 63 The majority also suggests that a literal reading of the plain language of N.C.
Gen. Stat. § 132-1.4A may lead to “absurd results[.]” See State v. Beck, 359 N.C. 611,
614, 614 S.E.2d 274, 277 (2005) (citation and quotation marks omitted). Rather, it is
the majority’s unique interpretation of the statute that has led to an absurd result.
Indeed, the majority’s mischaracterization, and subsequent misapplication, of the
plain language of N.C. Gen. Stat. § 132-1.4A wholly ignores subsection (g); as a result,
the majority would have it so that those limited persons entitled to disclosure under
subsection (c) would also be the only persons entitled to release.
¶ 64 The majority’s interpretation of N.C. Gen. Stat. § 132-1.4A is not only
unfounded, but it is also unrequested. At no point throughout this entire proceeding
has respondent-GPD argued that petitioners are excluded, by statute, from
petitioning for the release of CLEA recordings or that the trial court should have
made a determination as to whether petitioners constituted persons entitled to
disclosure under subsection (c). Indeed, it is so obvious from the plain reading of the
statute that subsection (c) does not apply to petitioners that it should go without
saying. In other words, the issue was never raised, and was thus unpreserved for
appeal. N.C.R. App. P. 10(a)(1). Instead, the majority has taken upon itself, sua
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sponte, the task of both arguing and concluding this line of reasoning, something this
Court is historically prohibited from doing. See id.¶ 65 Most importantly and poignantly, however, is that the consequence of the
majority’s reasoning is dangerous: such an interpretation of N.C. Gen. Stat. § 132-
1.4A would ensure that members of the media would never be allowed to petition the
superior court for release of CLEA recordings, let alone obtain them via court order.
I see no support in the statute for such a draconian result.
D. Abuse of Discretion
¶ 66 The majority contends that the N.C. Gen. Stat. § 132-1.4A “limits the trial
court’s discretion in analyzing the standards laid out therein and in determining, as
a result of that analysis, whether to release any, all, or some or [sic] none of the
petitioned recordings.” Setting aside the incorrect depiction of the trial court’s
discretion as “limited,” this statement again, misconstrues the plain language of the
statute.
¶ 67 N.C. Gen. Stat. § 132-1.4A(g) provides:
The request for release must state the date and
approximate time of the activity captured in the recording,
or otherwise identify the activity with reasonable
particularity sufficient to identify the recording to which
the action refers. The court may conduct an in-camera
review of the recording. In determining whether to order
the release of all or a portion of the recording, in addition to
any other standards the court deems relevant, the court
shall consider the applicability of all of the following
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standards:
(1) Release is necessary to advance a compelling public
interest.
(2) The recording contains information that is otherwise
confidential or exempt from disclosure or release under
State or federal law.
(3) The person requesting release is seeking to obtain
evidence to determine legal issues in a current or
potential court proceeding.
(4) Release would reveal information regarding a person
that is of a highly sensitive personal nature.
(5) Release may harm the reputation or jeopardize the
safety of a person.
(6) Release would create a serious threat to the fair,
impartial, and orderly administration of justice.
(7) Confidentiality is necessary to protect either an active
or inactive internal or criminal investigation or
potential internal or criminal investigation.
(8) There is good cause shown to release all portions of a
recording.
The court shall release only those portions of the recording
that are relevant to the person’s request, and may place
any conditions or restrictions on the release of the
recording that the court, in its discretion, deems
appropriate.
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N.C. Gen. Stat. § 132-1.4A(g) (emphasis added). The statute speaks clearly: it
requires the trial court to consider eight factors and allows it to consider any
additional factors of its own making.
¶ 68 The majority takes issue with the fact that the trial court stated in its ruling
that the fourth and fifth statutory factors “weighed against” releasing the CLEA
recordings to petitioners, and thus concluded that petitioners are “entitled to release
only after finding the statutory category that is applicable to the petition.” This
statement is not only incorrect, but misconstrues both the statute and the trial court’s
discretion.
¶ 69 First, the trial court does not have limited discretion. Rather, subsection (g) of
the statute provides mandatory factors for the trial court to consider in its analysis,
and also allows for the trial court to exercise its discretion in considering additional
factors of its own making. Second, nowhere within the plain language of subsection
(g) does the statute state that a finding that one or two factors weigh against the
release of CLEA recordings is in itself determinative; nor, in fact, does the majority
opinion explain away its conclusion.
¶ 70 Indeed, here, during the hearing, the trial court walked through each of the
eight standards laid out by the statute with careful consideration. In so doing, the
trial court determined whether the specific standard was relevant to the case sub
judice, and, if so, whether it weighed in favor of or against release of the petitioned
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CLEA recordings. The trial court also “deem[ed] [it] relevant” to consider “other
standards[,]” see id., as permitted by the statute, by giving “great weight to
transparency and public accountability with regard to police action” and in
“consider[ing] a failure to release this information to possibly undermine the public
interest and confidence in the administration of justice.” Having considered all these
standards, the trial court ultimately concluded, in its discretion, to authorize the
release of all the petitioned CLEA recordings. Accordingly, the trial court did not
abuse its discretion in authorizing the release of all the requested recordings to
petitioners.
E. Authority of the Trial Court
¶ 71 The majority agrees with respondent-GPD’s contention that the trial court
misapprehended the law and applied an incorrect standard when it stated that it had
no authority to censor the recordings absent a compelling government interest.
Indeed, the trial court stated in open court, at the close of its eight-standard analysis:
“[T]his Court does not have the authority to [c]ensor this information absent a
legitimate or compelling state interest not to do so.” The trial court also stated in the
June Order: “This Court does not have the authority to censor the photos/recordings
absent a compelling governmental interest and none was shown.”
¶ 72 N.C. Gen. Stat. § 132-1.4A(g) provides: “The court shall release only those
portions of the recording that are relevant to the person’s request, and may place any
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conditions or restrictions on the release of the recording that the court, in its
discretion, deems appropriate.” Id. The majority construes this portion of the statute
to mean that it could never be possible for all petitioned CLEA recordings to be
relevant to a petitioner’s request. However, not only does the majority fail to explain
this interpretation in its opinion, but such an interpretation goes against both the
plain language of the statute and the plain significance of a trial court’s discretion.
Indeed, subsection (g) clearly states that the trial court is permitted, and not
required, to “place any conditions or restriction on the release” that it, “in its
discretion, deems appropriate.” Id. (emphasis added).
¶ 73 Although the trial court may have made an inartful statement as to the
controlling law, it is clear from the record that it did not misapply that same law.
Our Supreme Court encountered a similar circumstance in State ex rel. Utilities
Comm’n v. Carolina Util. Customers Ass’n, Inc., 336 N.C. 657, 446 S.E.2d 332 (1994)
There, the Carolina Utility Customers Association (“CUCA”) argued, among other
things, that the Utilities Commission (the “Commission”) had “misapprehended the
scope of its discretion under N.C.G.S. § 62-158 in making the decision to grant or deny
Public Service Company’s petition” to establish a natural gas expansion fund. Id. at
664, 446 S.E.2d at 337. The Commission had stated in its order, “ ‘[o]nce we have
found unserved areas that are otherwise infeasible to serve, . . . the General Assembly
intends for the Commission to exercise limited discretion as to whether a fund should
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be created for that particular natural gas utility.’ ” Id. (alterations in original).
“CUCA argue[d] that the Commission in fact had wide discretion to determine
whether to authorize the establishment of an expansion fund . . . and that the
Commission’s refusal to exercise its full discretion caused its failure to address
CUCA’s legal and factual position.” Id. at 664-65, 446 S.E.2d at 337. “Furthermore,
CUCA contend[ed] that the order should be reversed because it constitutes a
Commission decision based upon a misinterpretation of applicable law.” Id. at 665,
446 S.E.2d at 337 (citation omitted).
¶ 74 The Supreme Court disagreed, finding that “the record d[id] not indicate that
the Commission viewed itself as without discretion to grant or deny the petition. The
Commission in fact stated that it was to exercise ‘limited discretion,’ as opposed to no
discretion whatsoever.” Id. In fact, the Commission had “held a hearing on the
matter and received testimony from numerous witnesses who were either in favor of
or opposed to the creation of the expansion fund.” Id. “After doing so, the Commission
issued an order that included extensive findings of fact” and “concluded that ‘the
creation of an expansion fund for the [Public Service] Company is in the public
interest.’ ” Id. “In order to implement [N.C. Gen. Stat. § 62-158], the Commission
adopted Commission Rule R6-82,” which set out “limitations . . . in keeping with the
language of the enabling statute, N.C.G.S. § 62-158.” Id. at 666, 446 S.E.2d at 337-
38. “The plain language of this rule indicates that the Commission had a proper view
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of its discretion in making a determination of whether to authorize the creation of an
expansion fund[.]” Id. at 666, 446 S.E.2d at 338. Thus, the Supreme Court concluded
“that the Commission did not act under a misapprehension of applicable law and that
it granted the petition and established the expansion fund pursuant to a proper
interpretation of its authority and discretion to do so.” Id.¶ 75 In the case sub judice, N.C. Gen. Stat. § 132-1.4A expressly allows for a trial
court to release all or a portion of any sought recording; setting conditions or
redacting said recording is permitted, but not mandated. The trial court analyzed
each statutory standard with careful consideration and, based on its detailed
analysis, concluded that the only acceptable outcome was to order for the release of
all of the petitioned CLEA recordings. Furthermore, the very fact that the trial court
considered additional standards—namely, transparency and public accountability—
in its analysis, as allowed by statute, indicates that it exercised its discretion
scrupulously. Thus, the trial court “did not act under a misapprehension of applicable
law” and filed its order “pursuant to a proper interpretation of its authority and
discretion to do so.” See id.¶ 76 In summary, the majority’s contention that the trial court’s release of all
petitioned CLEA recordings could only have been a result of a misapplication of the
law is of no moment, as the trial court behaved scrupulously and the controlling
statute plainly allows for this outcome.
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III. Conclusion
¶ 77 For the foregoing reasons, because the majority has misconstrued and
misinterpreted the unambiguous and plain language of N.C. Gen. Stat. § 132-1.4A
and has consequently misapplied the statute to this appeal, I dissent from the
majority opinion and would affirm.