Durham Herald Co. v. North Carolina Low-Level Radioactive Waste Management Authority , 110 N.C. App. 607 ( 1993 )

430 S.E.2d 441 (1993) 110 N.C. App. 607

The DURHAM HERALD CO., INC., Chapel Hill Publishing, Inc., The News and Observer Publishing Co., The Chatham News Publishing Company, and The North Carolina Press Association, Inc., Plaintiffs,
v.
The NORTH CAROLINA LOW-LEVEL RADIOACTIVE WASTE MANAGEMENT AUTHORITY, Defendant.

No. 9210SC542.

Court of Appeals of North Carolina.

June 15, 1993.

Everett, Gaskins, Hancock & Stevens by Hugh Stevens and Katherine R. White, Raleigh, for plaintiff-appellees.

Atty. Gen. Lacy H. Thornburg by Chief Deputy Atty. Gen. Andrew A. Vanore, Jr., Sp. Deputy Atty. Gen. Terry Richard Kane and Asst. Atty. Gen. K.D. Sturgis, Raleigh, for defendant-appellant.

EAGLES, Judge.

I

This case presents a question of first impression here—whether records made by contractors and subcontractors (contractors) of the Authority, kept by the contractors and not actually received by the Authority are public records, as defined under G.S. § 132-1, requiring disclosure under North Carolina's public records law.

G.S. § 132-1 provides:

"Public record" or "public records" shall mean all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or 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 subdivisions. 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, commission, bureau, council department, authority or other unit of government of the State or any county, unit, special district or other political subdivision of government.

Under this statute, in determining access issues two questions must be answered: First, whether a contractor is an "[a]gency of North Carolina government or its subdivisions"; and second, if a contractor is found to be an agency, whether its records are "public records" that were "made or received pursuant to law or ordinance in connection with the transaction of public business...." News & Observer Publishing Co. v. Wake County Hosp. Sys., 55 N.C.App. 1, 284 S.E.2d 542 (1981), disc. rev. denied, 305 N.C. 302, 291 S.E.2d 151, cert. denied, 459 U.S. 803, 103 S.Ct. 26, 74 L.Ed.2d 42 (1982). The trial court found that the contractors are not agencies as defined by G.S. § 132-1, and there has been no appeal from that finding. That finding is the subject of a cross assignment of error by appellees but the cross assignment is not effective to attack the judgment itself. Cross assignments have limited utility; they can be effective to provide additional bases or alternative grounds to support a judgment or portion of a judgment which successfully has been attacked by appellant. There is no dispute that the Authority itself is a State agency. We now address the issue of when papers and items produced and held by consultants acting pursuant to contracts with the Authority become subject to disclosure pursuant to the Public Records act.

"It is established ``[u]nder the rules of statutory construction, statutes in pari materia must be read in context with each other.' Cedar Creek Enterprises, Inc. v. Department of Motor Vehicles, 290 N.C. 450, 454, 226 S.E.2d 336, 338 (1976). Accord, Newlin v. Gill, 293 N.C. 348, 237 S.E.2d 819 (1977). ``In pari materia' is defined as ``[u]pon the same matter or subject.' Black's Law Dictionary 898 (4th ed. 1968)." News & Observer, 55 N.C.App. at 8-9, 284 S.E.2d at 546. Furthermore, "``[w]hen the language of a statute is clear and unambiguous, there is no room for judicial construction, and the courts must give it its plain and definite meaning.'" Correll v. Division of Social Services, 332 N.C. 141, 144, 418 S.E.2d 232, 235 (1992) (quoting Lemons v. Boy Scouts of America, Inc., 322 N.C. 271, 276, 367 S.E.2d 655, 688, reh'g denied, 322 N.C. 610, 370 S.E.2d 247 (1988). Finally, "[i]n the interpretation of statutes the legislative will is the controlling factor." State v. Hart, 287 N.C. 76, 80, 213 S.E.2d 291, 294 (1975).

G.S. § 132-1 and G.S. § 104G-6(a)(18) both address the issue: under what circumstances do papers and items generated by the Authority's contractors become public records?

G.S. § 104G-6(a) provides in part:

(a) To carry out the purposes of this Chapter, the Authority:

* * * * * *

(18) Shall receive all field data, charts, maps, tracings, laboratory test data, soil and rock samples, and such other records as the Authority deems appropriate, collected or produced by its employees, contractors, or consultants pursuant to siting, operating, or closing of low-level radioactive waste facilities. All such data and materials shall become the property of the State and shall not be disposed of except in accordance with G.S. 132-3 except that soil and rock samples may be subjected to tests and reduced in volume for purposes of storage in a manner approved by the Authority. The Authority may enter into agreements with other State agencies for the purpose of storage and preservation of data and materials;

It is clear that under G.S. § 104G-6(a)(18) the Authority must receive certain enumerated papers and items generated by its contractors, and that the Authority has discretion to receive other papers and items generated by its contractors. G.S. § 104G-6(a)(18) provides that the Authority shall receive "all field data, charts, maps, tracings, laboratory test data, soil and rock samples ..." generated by the Authority's contractors. It also provides that the Authority shall receive "such other records as the Authority deems appropriate...." However, the second sentence of G.S. § 104G-6(a)(18) provides, in pertinent part, that "[a]ll such data and materials shall become the property of the State...." The phrase "[a]ll such data and materials" obviously includes those items that the Authority is mandated to receive and those which the Authority has exercised its discretion to receive. The phrase "shall become the property of the State" clearly indicates that the General Assembly intended that at some unstated time the data and materials would become State property, as distinguished from being the property of the consultant. The statute does not spell out precisely when the items "shall become the property of the State" and, therefore, subject to the Public Records act's disclosure provisions. Accordingly, we hold that the General Assembly did not intend that the consultant-generated papers and items would be public records immediately upon creation or collection by the consultants or contractors. Instead, reading G.S. § 104G-6(a)(18) and G.S. § 132-1 together, we conclude that the General Assembly intended that the papers and items would become public records only when they are received by the Authority in the proper exercise of its discretion.

Here, the appellees have not pled and the trial court did not find or conclude that the Authority abused its discretion by attempting to prevent public disclosure of information by delaying or declining receipt of contractor-generated papers and items from contractors. Accordingly, the trial court's order requiring the Authority to obtain records from its contractors must be vacated.

II

Because of our disposition of the foregoing issue we need not address the remaining arguments raised by the appellant.

III

Finally, we note that the appellees bring forward four "cross-assignments of error". Each cross-assignment states that certain portions of the trial court's judgment were erroneous. They do not present an alternative basis for the trial court's decision. "The proper means by which to raise such an attack is an independent appeal." Whedon v. Whedon, 68 N.C.App. 191, 196, 314 S.E.2d 794, 797 (1984), reversed on other grounds, 313 N.C. 200, 328 S.E.2d 437 (1985). The appellees have failed to cross-appeal. Accordingly, to the extent appellees' cross-assignments have not already been addressed they are overruled.

Vacated.

MARTIN and JOHN, JJ., concur.