Wind v. City of Gastonia

MARTIN, Chief Judge.

Defendant City of Gastonia appeals from the trial court’s order granting plaintiff David B. Wind’s motion for summary judgment, denying defendant’s cross-motion for summary judgment, and ordering that defendant disclose to plaintiff unredacted copies of all documents contained in the City of Gastonia Police Department’s Internal Affairs Investigative Case Files 2008265 and 2008307. We affirm and remand for further proceedings.

According to the record before us, plaintiff joined the Gastonia Police Department in March 2008 as a patrolman, after serving as a detention enforcement officer for the United States Immigration and Naturalization Service, and as an officer and detective with the Coral Springs Police Department in Florida. In the Fall of 2008, two complaints were made against plaintiff and reported to the Gastonia Police Department;- one by a citizen, and one by a police officer. The citizen’s complaint, which was designated as Internal Affairs (“IA”) Investigative Case File 2008307, alleged that plaintiff exhibited “Rudeness/Force by Firearm” after plaintiff disarmed the citizen and secured the citizen’s firearm while plaintiff conducted an investigation. The officer’s complaint, which had been designated as IA Investigative Case File 2008265, alleged that plaintiff exhibited “Conduct Unbecoming of an Officer” and challenged plaintiff’s “Integrity” and “Truthfulness” after the complainant charged that plaintiff falsified grounds for probable cause in order to make an arrest at a traffic stop. The citizen’s complaint was investigated by plaintiff’s supervisor, while the officer’s complaint was investigated by Gastonia Police Department’s Office of Professional Standards Unit, formerly its IA Unit.

Gastonia Police Department’s Chief of Police Timothy Lee Adams was provided with all of the information collected upon the conclusion of both investigations in order to “adjudicate [] the case[s]” and make his final decisions with respect to each complaint. With respect to the citizen’s complaint, the allegations “were determined to be NOT SUSTAINED” and the case was “closed.” With respect to the officer’s complaint, the allegations were determined to be “unfounded by the Chief [of Police]” and the case was designated as “closed, no further action required.”

In February 2009, after the cases were deemed closed, plaintiff sent a written memorandum to Chief Adams requesting an opportunity to view the complete investigative files associated with the complaints, and met with Chief Adams in person shortly thereafter to request the same. Plaintiff asserts that Chief Adams refused his request to inspect the complete contents of the files. While the record indicates that Chief Adams did provide documents from these files to plaintiff — albeit two years after plaintiff’s initial request — the documents provided to plaintiff were significantly redacted. Defense counsel represented to the trial court that the redactions concealed only the identity of the complainants and such information as would enable someone to identify them.

Plaintiff filed his Complaint and First Amended Complaint against defendant City of Gastonia (“Gastonia”) in February 2010, alleging that Gastonia violated N.C.G.S. § 160A-168, the North Carolina Constitution, and Gastonia’s own “rules, regulations, policies and procedures” by “refusing to disclose [to plaintiff] the requested documents” comprising IA Investigative Case Files 2008307 and 2008265. Plaintiff and Gastonia filed cross-motions for summary judgment, which were heard on 24 October 2011. On 1 November 2011, the trial court entered an order granting plaintiff’s motion for summary judgment, denying Gastonia’s motion for summary judgment, and retaining for trial “[t]he issue of any damages from the denial of the records ...The court further ordered that plaintiff “is entitled to complete copies of the documents contained in [IA] Files 2008265 and 2008307 without any redacted information,” and ordered that Gastonia “disclose these documents to [plaintiff].” Gastonia appealed to this Court, and the trial court entered a consent order staying “all further trial court level proceedings in this matter” until the conclusion of this appeal.

“Generally, there is no right of immediate appeal from interlocutory orders and judgments.” Sharpe v. Worland, 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999), on remand, 137 N.C. App. 82, 527 S.E.2d 75 (2000); see also id. (“Interlocutoiy orders and judgments are those made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court to settle and determine the entire controversy.” (internal quotation marks omitted)). However, “[notwithstanding this cardinal tenet of appellate practice, immediate appeal... is available from an interlocutory order or judgment which affects a substantial right.” Sharpe, 351 N.C. at 161-62, 522 S.E.2d at 579 (citations and internal quotation marks omitted); see also N.C. Gen. Stat. § l-277(a) (2011); N.C. Gen. Stat. § 7A-27(d)(l) (2011). “It is well settled that an interlocutory order affects a substantial right if the order deprive[s] the appealing party of a substantial right which will be lost if the order is not reviewed before a final judgment is entered.” Sharpe, 351 N.C. at 162, 522 S.E.2d at 579 (alteration in original) (internal quotation marks omitted).

Here, Gastonia concedes that the present appeal is interlocutoiy. However, Gastonia argues that such appeal is properly before this Court for immediate review because the trial court’s order affects a substantial right “that would be forever lost by [Gastonia] if the matter proceeded[] by having to turn over documents which [Gastonia] claims are statutorily privileged.” We recognize that “if [Gastonia] is required to disclose the very documents that it alleges are protected from disclosure by the statutoiy privilege, then a right materially affecting those interests which a [person] is entitled to have preserved and protected by law— —a substantial right--is affected,” and “the substantial right asserted by [Gastonia] will be lost if the trial court’s order is not reviewed before entry of a final judgment.” See id. at 164-65, 522 S.E.2d at 580-81 (second alteration in original) (internal quotation marks omitted). Thus, because the trial court’s interlocutory order compels production of files which may be privileged pursuant to N.C.G.S. § 160A-168, we conclude that the trial court’s order affects a substantial right and is immediately appealable to this Court. See Hayes v. Premier Living, Inc., 181 N.C. App. 747, 751, 641 S.E.2d 316, 318 (2007). We further conclude, since the sole argument advanced by the parties regarding the grounds for immediate appellate review is Gastonia’s argument that protecting the requested files from disclosure affects a substantial right pursuant to a statutory privilege arising under N.C.G.S. § 160A-168, only the issues of whether N.C.G.S. § 160A-168 requires Gastonia to disclose the requested files to plaintiff, and whether Gastonia is statutorily exempt from the requirement, if any, to disclose the same, are properly before us.

Gastonia first argues that it did not violate N.C.G.S. § 160A-168 by denying plaintiffs request to inspect the documents at issue, because the documents requested fall within a subsection of the statute, N.C.G.S. § 160A-168(cl)(4), which, according to Gastonia’s argument, exempts it from any disclosure obligations arising under the other subsections of the statute. “Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning.” Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990); see also Perkins v. Ark. Trucking Servs., Inc., 351 N.C. 634, 638, 528 S.E.2d 902, 904 (2000) (“Nothing else appearing, the Legislature is presumed to have used the words of a statute to convey their natural and ordinary meaning.” (internal quotation marks omitted)). “[HJowever, where a statute is ambiguous or unclear as to its meaning, we must interpret the statute to give effect to the legislative intent.” N.C. Dep’t of Revenue v. Hudson, 196 N.C. App. 765, 767, 675 S.E.2d 709, 711 (2009). Additionally, “[w]ords and phrases of a statute may not be inteipreted out of context, but individual expressions must be construed as apart of the composite whole and must be accorded only that meaning which other modifying provisions and the clear intent and purpose of the act will permit.” In re Hardy, 294 N.C. 90, 95-96, 240 S.E.2d 367, 371-72 (1978) (internal quotation marks omitted).

According to N.C.G.S. § 160A-168(a), employee personnel files “maintained by a city are subject to inspection and may be disclosed only as provided by [N.C.G.S. § 160A-168].” N.C. Gen. Stat. § 160A-168(a) (2011). “[A]n employee’s personnel file” “consists of any information in any form gathered by the city with respect to that employee and, by way of illustration but not limitation, relating to his application, selection or nonselection, performance, promotions, demotions, transfers, suspension and other disciplinary actions, evaluation forms, leave, salary, and termination of employment.” Id. In the present case, Gastonia conceded during oral arguments to this Court that the documents at issue are a part of plaintiff’s employee personnel file in accordance with N.C.G.S. § 160A-168(a).

All information contained in a city employee’s personnel file that is not deemed to be “a matter of public record,” which includes information such as name, age, current position and salary, and date of original employment, see N.C. Gen. Stat. § 160A-168(b), “is confidential and shall be open to inspection only” in certain instances. N.C. Gen. Stat. § 160A-168(c)(l). One instance in which “confidential” information from a city employee’s personnel file “shall be open to inspection” allows “[t]he employee or his duly authorized agent” to “examine all portions of his personnel file,” id., with limited exceptions,¹ which gives the employee an opportunity to determine whether material in his file “is inaccurate or misleading.” See, e.g., N.C. Gen. Stat. § 160A-168(d) (providing that the city council of a city that maintains personnel files “containing information other than” that which is a matter of public record “shall establish procedures whereby an employee who objects to material in his file on grounds that it is inaccurate or misleading may seek to have the material removed from the file or may place in the file a statement relating to the material”). In the present case, Gastonia does not dispute that, with limited exceptions, a city employee has a statutoiy right to inspect “confidential” information in his own personnel file pursuant to N.C.G.S. § 160A-168(c)(l).

However, the statute further provides that, “[e]ven if considered part of an employee’s personnel file, the following information need not be disclosed to an employee nor to any other person”: “Notes, preliminary drafts and internal communications concerning an employee. In the event such materials are used for any official personnel decision, then the employee or his duly authorized agent shall have a right to inspect such materials.” N.C. Gen. Stat. § 160A-168(cl)(4). It is under this exception enumerated in subsection (d)(4)² that Gastonia asserts its authority to deny plaintiff’s request to inspect the documents at issue. Thus, we now consider whether Gastonia was permitted by the exemption under N.C.G.S. § 160A-168(cl)(4) to deny plaintiff the opportunity to inspect the IA investigative files at issue-files which Gastonia concedes are a part of plaintiff’s employee personnel file in accordance with N.C.G.S. § 160A-168(a) — despite plaintiff’s statutory right under N.C.G.S. § 160A-168(c)(l) to otherwise inspect this “confidential” information.

We note as a preliminary matter that, because the disclosure exemption arising under subsection (d)(4) particularly applies only to those materials “concerning an employee” that are described as “[n]otes, preliminary drafts and internal communications,” see N.C. Gen. Stat. § 160A-168(cl)(4), Gastonia can only invoke the disclosure exemption of this subsection if the IA investigative files at issue are materials that qualify for this exemption. In other words, because Gastonia asks this Court to conclude that it was statutorily authorized to exempt the complete IA investigative files at issue under subsection (d)(4), each file would have to be deemed a note, a preliminary draft, or an internal communication concerning plaintiff, as such terms are used in subsection (d)(4), in order for Gastonia’s claim of an exemption from the disclosure requirements of subsection (c)(1) to succeed.

We look for guidance about what materials the General Assembly intended to include within the ambit of “[n]otes, preliminary drafts and internal communications” by examining the plain meaning of these terms. Based on the common definitions of these terms at the time this statute was promulgated, it appears the General Assembly intended to allow a disclosure exemption under subsection (d)(4) for written materials that are informal or provisional in character. See Webster’s New World Dictionary 423 (2d ed. 1974) (defining “draft” as “a rough or preliminary sketch of a piece of writing”); id. at 973 (defining “note” as “a brief statement of a fact, experience, etc. written down for review, as an aid to memory, or to inform someone else”). In the present case, the documents comprising the IA investigative files at issue are not in the record before this Court, nor would we expect them to be in light of the substantial right asserted as the grounds for Gastonia’s interlocutory appeal. Nonetheless, the materials sought for inspection by plaintiff in this case are the complete investigative files concerning complaints made against plaintiff, which investigations have been finally adjudicated and determined to be closed. Since it is Gastonia’s burden as the appellant to provide argument supporting its assertion that the materials it seeks to exempt from the disclosure requirement of subsection (c)(1) fall within the ambit of material that may be exempt from disclosure under subsection (d)(4), see N.C.R. App. P. 28(b)(6), in the absence of contrary argument or evidence in the record, we cannot conclude that the IA investigative files that plaintiff seeks to inspect are each a note, a preliminary draft, or an internal communication concerning plaintiff. Nevertheless, even assuming without deciding that the IA investigative files that plaintiff seeks to inspect are materials that may be exempted from disclosure to plaintiff under subsection (d)(4), we are not persuaded by Gastonia’s argument that it had a statutory right to refuse plaintiff’s request to inspect these materials because such materials were not “used for any official personnel decision.”

While the General Assembly uses the phrase “official personnel decision” in four other provisions of the General Statutes, see N.C. Gen. Stat. § 122C-158(d)(4) (2011) (regarding privacy of personnel records for employees of facilities delivering services for mental health, developmental disabilities, and substance abuse); N.C. Gen. Stat. § 131E-257.2(d)(4) (2011) (regarding privacy of personnel records for public hospital employees); N.C. Gen. Stat. § 153A-98(cl)(4) (2011) (regarding privacy of personnel records for county employees); N.C. Gen. Stat. § 162A-6.1(d) (4) (2011) (regarding privacy of personnel records for water and sewer authorities’ employees), the General Assembly has not explicitly defined this phrase.

As we recognized above, “ [statutory interpretation properly begins with an examination of the plain words of the statute,” because “[t]he legislative purpose of a statute is first ascertained by examining the statute’s plain language.” Correll v. Div. of Soc. Servs., 332 N.C. 141, 144, 418 S.E.2d 232, 235 (1992); see also Perkins, 351 N.C. at 638, 528 S.E.2d at 904 (“[C]ourts may look to dictionaries to determine the ordinary meaning of words within a statute.”). “If a statute ‘contains a definition of a word used therein, that definitioil controls,’ but nothing else appearing, ‘words must be given their common and ordinary meaning.’ ” Knight Publ’g Co. v. Charlotte-Mecklenburg Hosp. Auth., 172 N.C. App. 486, 492, 616 S.E.2d 602, 607 (quoting In re Clayton-Marcus Co., 286 N.C. 215, 219, 210 S.E.2d 199, 202-03 (1974)), disc. review denied, 360 N.C. 176, 626 S.E.2d 299 (2005).

Generally, “official” is defined as “by, from, or with the proper authority; authorized or authoritative”; “personnel” is defined as “persons employed in any work, enterprise, service, establishment, etc.”; and “decision” is defined as “a judgment or conclusion reached or given.” Webster’s New World Dictionary 366, 988, 1062 (2d ed. 1974). Thus, according to the plain meaning of the terms comprising this phrase, an “official personnel decision” is an authorized or authoritative judgment or conclusion of or pertaining to employed persons. Since “personnel” is a collective noun, the plain meaning of this phrase — as it is used in this statute — more specifically refers to authorized or authoritative judgments or conclusions of or pertaining to the employed person about whom the judgment or conclusion is rendered. Gastonia urges this Court to narrowly construe this phrase to apply only to those “decisions” that result in “some type of change or alternation [sic] in employment.” (Emphasis added.) However, Gastonia provides no meaningful support for its narrowly-drawn interpretation. Instead, we think the General Assembly’s use of the term “personnel” in subsection (a) of this statute is consistent with a less-constrained reading of the phrase “official personnel decision,” as the phrase is used in subsection (d)(4), and is also instructive in construing the meaning of the challenged phrase within the context of this statute.

The General Assembly broadly defines the phrase “employee’s personnel file” as “consisting] of any information in any form gathered by the city with respect to that employee.” N.C. Gen. Stat. § 160A-168(a) (emphasis added). In other words, according to the General Assembly, the information included in a city employee’s personnel file is not limited to information that, as Gastonia might suggest based on its asserted plain meaning of the term “personnel,” concerns only changes in employment like promotions, demotions, or transfers. Rather, according to the express language of the statute, the information in a city employee’s personnel file also concerns “nonselection,” “performance,” “evaluation forms,” as well as other information “in any form gathered by the city with respect to that employee.” See id. In fact, the General Assembly expressly declines to limit what form the information included in an employee’s personnel file may take, by providing a list of examples of information that it specifies is offered “by way of illustration but not limitation.” See id. (emphasis added). Thus, with respect to the phrase “official personnel decision,” as it is used in the context of the subsection (d)(4) exemption, we are of the opinion that the General Assembly similarly intended that an “official personnel decision” need not be limited only to those determinations that result in a change to an employee’s position of employment, as Gastonia suggests. Therefore, we conclude that when an informal, provisional, or otherwise “preliminary” or “internal” communication, note, or draft concerning an employee is included in his or her personnel file, that communication, note, or draft is subject to the disclosure requirement of subsections (c)(1) and (d)(4) when such materials are used to make an authorized or authoritative judgment or conclusion with respect to that employee.

According to the depositions of both Chief Adams and Sergeant Reid E. Brafford, who is the supervisor of the Office of Professional Standards and reports directly to Chief Adams, once the investigations were concluded, the complete investigative files for each complaint, which included all of the documents necessary to develop a thorough investigative file into both complaints, were provided to Chief Adams, the senior-most official of the department. In accordance with departmental policy, Chief Adams is the person authorized to serve as the final decision-maker with respect to complaints of misconduct against employees and to adjudicate such matters on behalf of the department. Chief Adams analyzed the facts and issues arising out of the complaints as detailed in each document comprising the investigative files and weighed all of the evidence based on the information included in the respective investigative files in order to finally determine each matter. After considering all of the information included in each document in the investigative files, Chief Adams finally decided to dismiss or terminate the complaints made against plaintiff and determined, as a result of the respective investigations, that no disciplinary action need be taken against plaintiff in either matter. In other words, Chief Adams was authorized to, and did, use IA Investigative Case Files 2008265 and 2008307 to finally adjudicate matters pertaining to plaintiff.

Gastonia insists, however, that because plaintiff “experienced no change” in his employment as a result of Chief Adams’s final adjudications regarding the complaints against plaintiff, Chief Adams “made no ‘official personnel decision’ with regards to the two disputed IA investigative files,” and, thus, plaintiff failed to establish that he is entitled to inspect the investigative files under subsection (d)(4). Nonetheless, as we recognized above, the General Assembly provided in subsection (a) that an employee’s “personnel” file may include information regarding “selection or nonselection” “performance,” “evaluation forms,” as well as other information “in any form” “with respect to that employee.” N.C. Gen. Stat. § 160A-168(a) (emphasis added). Similarly, even though Chief Adams’s decisions did not result in a change in plaintiff’s employment, we are persuaded that Chief Adams made official personnel decisions, as we have construed this phrase, to finally dismiss or terminate the complaints against plaintiff and to take no disciplinary action against him using the information included in the IA investigative files. Therefore, assuming arguendo that IA Investigative Case Files 2008265 and 2008307 were materials to which the disclosure exemptions of subsection (cl) (4) applied, because we are persuaded that such materials were used by Chief Adams to make official personnel decisions with respect to plaintiff, we conclude that plaintiff has a statutory right to inspect the requested files under subsection (d)(4).

Gastonia next argues that it did not violate N.C.G.S. § 160A-168 by denying plaintiff’s request to inspect the documents at issue, because the requested documents “are separate files employed for the maintenance of confidentially [sic] and protection of [Gastonia’s] IA investigation program.” Gastonia appears to suggest that physically separating the IA investigative files at issue from other materials in plaintiff’s employee personnel file renders the disclosure requirements of this statute inapplicable to the requested files. Nevertheless, perhaps because Gastonia realized the untenability of its argument, seeking an exemption from a statutory requirement to disclose certain documents while simultaneously arguing that the statute under which the disclosure requirement arises is inapplicable to the type of documents for which it seeks the statutory exemption, Gastonia conceded during oral arguments that the requested files are a part of plaintiff’s employee personnel file under N.C.G.S. § 160A-168(a). Additionally, Gastonia does not direct this Court to any relevant authority which exempts the requested files from the disclosure mandate of N.C.G.S. § 160A-168(c)(l), requiring that, with limited exception, all “confidential” information in a city employee’s personnel file “shall be open to inspection” by that employee. Thus, we find no support for Gastonia’s assertion that “separately” “maintain[ing]” these IA investigative files, which it concedes are a part of plaintiff’s employee personnel file, exempts Gastonia from its statutory obligation under N.C.G.S. § 160A-168(c)(l) to allow plaintiff to inspect this “confidential” information.

Finally, we note that the dissent raises a public policy argument that advocates for Gastonia’s right to provide plaintiff with redacted information from plaintiff’s own employee personnel file. Since Gastonia does not present argument to this Court that it could satisfy the mandatory disclosure requirement of N.C.G.S. § 160A-168(c)(l) by allowing plaintiff to inspect “confidential” information from his own employee personnel file that had been subjectively redacted by Gastonia, and since “questions as to public policy axe for legislative determination,” see Home Sec. Life Ins. Co. v. McDonald, 277 N.C. 275, 285, 177 S.E.2d 291, 298 (1970), we find such a discussion to be inapposite to the issues properly before us.

Accordingly, we conclude the trial court did not err when it granted summary judgment in favor of plaintiff, denied Gastonia’s cross-motion for summary judgment, and ordered Gastonia to disclose to plaintiff unredacted copies of all documents contained in Gastonia Police Department’s IA Investigative Case Files 2008265 and 2008307.

Affirmed; Remanded for further proceedings.

Judge HUNTER concurs: Judge DILLON concurs in part and dissents in part.

1 . Subsection (c)(1) provides that all information contained in a city employee’s personnel file other than that which is deemed a matter of public record under subsection (b) “shall be open to inspection” to an “employee or his duly authorized agent... except (i) letters of reference solicited prior to employment, and (ii) information concerning a medical disability, mental or physical, that a prudent physician would not divulge to his patient.” N.C. Gen. Stat. § 160A-168(c)(l). Because neither plaintiff nor Gastonia assert that these exceptions are applicable to the files requested in the present case, we do not address these exceptions further.

2 . Subsections (c)(1) and (cl) of N.C.G.S. § 160A-168 are similarly-enumerated provisions of the same statute; subsection (cl) was added to N.C.G.S. § 160A-168 by the General Assembly in 1981, after subsections (a) through (f) were already codified. See 1981 N.C. Sess. Laws 1424,1425, ch. 926, § 3; 1975 N.C. Sess. Laws 929, 930-32, ch. 701, § 2. Because this opinion makes repeated references to both subsections, we caution the reader to be mindful of the potential confusion these similar designations may cause.