Municipal Laws

N.C. Court of Appeals: Statutory "Custodian" of Public Records Is "In Charge of" the Relevant Office

Former Durham District Attorney Tracey Cline was removed from office by Court order in the first half of 2012.  The story behind her efforts to return to the office has been detailed at great length by the local Raleigh and Durham press corps.

Ms. Cline recently filed suit against David Hoke — both, personally and “in his official capacity as assistant director of the North Carolina Administrative Office of the Courts” (the “AOC”) — to obtain certain AOC emails “related to [Ms. Cline’s] service as district attorney in preparation to defend a complaint filed against her by the North Carolina State Bar”.

The case we’re talking about is Cline v. Hoke, No. COA14-428 (Dec. 16, 2014).

The trial court dismissed Ms. Cline’s suit against Mr. Hoke in part, and Ms. Cline appealed.

On appeal, the Court first addressed the dismissal of the suit against Mr. Hoke in his individual capacity.  The Court dispenses with this appellate point with a swift stroke of the pen: “In order to compel an unresponsive custodian to fulfill this statutory duty [to permit reasonable inspection of public records pursuant to NCGS 132-6], a party must sue the custodian of those records in the custodian’s official capacity.”

Ok, so Mr. Hoke must be sued in his official capacity.  Turns out that Ms. Cline covered that base, however.  The question then becomes: is Mr. Hoke, as assistant director of the AOC, the “custodian” to be named in a public records suit?

The AOC argues on two levels.  First, the AOC argues that “each individual employee is the custodian of his/her emails” such that a lawsuit against Mr. Hoke would only cover emails to/from Mr. Hoke, himself, and not with AOC writ large.  The Court disagrees, and notes that the AOC made a similar, losing argument in LexisNexis Risk Data Management, Inc. v. N.C. AOC, __ N.C. App. __, 754 S.E.2d 862 (2014).  The AOC, rather than the individual employee within the AOC, is the custodian.  The AOC’s argument fails on this point.

On the second level, however, the AOC argues successfully that Mr. Hoke, as assistant director of the AOC, is not the official “in charge of an office having public records”.  Therefore, Mr. Hoke is “not the designated custodian of the AOC’s records per NCGS 132-2”.  Ms. Cline’s suit fails.

“This is all of my crap, yes.  And no one else should touch my crap.  But, correct, I’m not the custodian of this crap.”  

Mike Thelen practices in Womble, Carlyle’s Real Estate Litigation and Land Use practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development matters in both state and federal venues throughout North Carolina.

Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw and “like” us on Facebook here.

Categories: Municipal Laws

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