The North Carolina Supreme Court recently heard arguments in an ongoing case filed by several media companies seeking to review law enforcement recordings of the “I Am Change” march and rally in downtown Graham that ended with pepper spray and resulted in nearly two dozen arrests – including that of Alamance News reporter Tomas Murawski, who was covering the event for the newspaper – on October 31, 2020.
The state Supreme Court has not yet issued a ruling in the case.
Mike Tadych, an attorney with the Stevens Martin Vaughn & Tadych law firm, which is representing a media coalition that filed the petition to obtain body-worn camera footage recorded by Graham police officers during the October 2020 march, noted during his opening statement to the justices last month, “The General Assembly placed this statute in the middle of the Public Records law – a law that this court has interpreted for30 plus year to err on the side of openness and access.
“I note also that only the Graham police department appealed [an order entered by Alamance County senior resident superior court judge Andrew Hanford] on June 15, 2021 to release the recordings,” Tadych told the court. “The Alamance County sheriff’s department has not; it’s only the Graham police department that does not want these recordings made public.”
In December 2022, a panel for the state Court of Appeals split 2-1, with the majority concluding that none of the seven media petitioners was entitled to the recordings under a state law; entered a stay of Hanford’s order; and remanded the case back to Alamance County for further proceedings.
Instead, the media outlets filed an appeal in the state Supreme Court earlier this year, asking for the stay to be lifted and for the court to order the release of the October 31, 2020 recordings to the petitioners.
The petitioners include: The McClatchy Company, which owns the Raleigh News & Observer and several other daily newspapers in North Carolina; Carolina Public Press; Capitol Broadcasting, the proprietor of WRAL; Lee Enterprises, which owns the Greensboro News & Record; Hearst Properties, the owner of WXII; and the Gannett Company, then-owner of the Burlington Times-News. Other petitioners included Mackenzie Wilkes, John Norcross, and Grace Terry of the Elon News Network.
“It’s important to note that everything that took place [is] in these recordings took place in public in Graham, North Carolina.,” Tadych noted during his opening statement before the justices. “As at least two of the justices know well, there’s no expectation of privacy on a public street, as the Court of appeals held in State v. Degraffenreid in 2018. Judge Hanford is a resident superior court judge in Alamance County; he’s there, he’s a witness to what transpired there, and he saw fit to release all of these recordings. He’s also the only individual to my knowledge to have reviewed all of these recordings.”
Supreme Court justice Richard Dietz asked Tadych during arguments in the case last month why the media coalition had chosen to proceed under a portion of state law that provides for general release of custodial law enforcement recordings to parties otherwise not entitled to them.
“Counsel, why do you think if you compare subsection F to subsection G, one’s talking very clearly about petitioning for these things and providing a procedure to do so, and one just references an action,” justice Richard Dietz asked Tadych. “What do we make of that?”
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Tadych told Dietz, “When this statute came out, our colleague Amanda Martin [and another attorney] got together with [the state’s Administrative Office of the Courts]” and came up with the form currently used to petition for the release of so-called “custodial law enforcement recordings.”
“If you look at juvenile proceeding statutes, you file an action by filing a petition,” Tadych said. “It’s the same path. The oddity about the way others interpret this is we have to sue law enforcement who isn’t complying with the law, if we’re bringing an action. I literally think it’s form over substance.
“The thing that everybody wants to know is there on that [petition] form – who’s involved, what they’re seeking…but it’s a process that’s worked very, very well,” Tadych said. “It’s also important to note that maybe we need to file a civil action cover sheet and have summons issued. I believed we filed [that]; it’s not in the record, but I don’t think you can get anything filed in superior court without doing it. The other difference is we paid the $200, which you don’t have to do under [a separate statutory provision].”
“The other difference is, I believe, if you took out section G, law enforcement can get the recordings released, and anybody who’s in them can get them released,” Tadych elaborated, referring to a separate provision in the same state law entitled, “Release of Recordings to Certain Persons; Expedited Process.”
Instead, the media coalition petitioned for release of the recordings under another subsection of that law, which requires a court order in order to obtain recordings that are in the custody of a law enforcement agency, Tadych explained in response to Dietz’s question.
The provision in state law under which the media coalition filed its petition requires eight factors to be considered, as Tadych noted in a new brief he filed in the state Supreme Court earlier this year.
Those eight factors include, in part, that release is necessary to advance a public interest; and that good cause is shown to release all portions of a recording.
“My clients weren’t entitled to disclosure under the law so we had to go with [the second provision that governs the general release of recordings that are in custody of a law enforcement agency],” the attorney said. “If The Alamance News was part of this coalition – and [Tomas] Murawski, who was the reporter who was arrested during all of this – we could go with [the first provision allowing for release].”
“I think you’re right about the interaction,” Dietz said, “in terms of who can request it, but do you think that’s what the Court of Appeals held?”
Tadych countered, “The Court of Appeals decided an issue that was not before them. They decided that unless you’re entitled to disclosure under” a separate section that permits disclosure of recordings in law enforcement custody only when they depict a death or serious bodily injury, “you’re never entitled to release. That is just not a correct reading of the statute… [But] we aren’t making a contention, and have never made a contention, that we’re entitled to disclosure.”
Much of the arguments put forward by the attorney for the media coalition dealt with whether they have sufficient legal standing to seek the release of the recordings surrounding the march in downtown Graham on October 31, 2020.
“The last major area we think the court needs to consider is did judge Hanford properly use his discretion,” Tadych added. “…His primary concern was transparency and accountability and the public’s trust in the justice system, and that’s why he made his decision.
“I made an argument that, by ordering those recordings into court, there may be a First Amendment right that attaches to them,” Tadych continued. “In this case, multiple people were arrested; there were two federal lawsuits that stemmed out of this, and they became judicial records.”
Tadych noted, in response to a question from justice Trey Allen, Tadych said that some First Amendment claims had been “preserved” at the trial court level. “Our brief structured our argument as such. He [Hanford] didn’t explicitly say, “I agree with you, Mr. Tadych; what he said was, ‘I don’t have the authority to censor these records, absent a compelling governmental interest, and none has been shown.’”
Attorney for GPD insists that media coalition should’ve filed civil suit
Anthony Biller, who has represented the city of Graham and Graham police department in this and several other court cases surrounding the October 31, 2020 march in downtown Graham, noted in his opening statement to the state Supreme Court that the Appeals Court had concluded:
- Hanford failed to make necessary findings in order to determine what statutory provisions entitled the media coalition to the “clear recordings”;
- Hanford erred “by not redacting irrelevant recordings and by ordering unrestricted release of all recordings”;
- Hanford erred in concluding he had no discretion to censor any part of the requested recordings;
- And fourth, “important for my client’s purposes and other police and sheriff agencies around the state, the Court of Appeals held that upon remand, the petitioner carries and maintains the burden of eligibility, specificity, and relevance, under the statute, and the respondents have no burden upon remand.”
The attorney representing the Graham police department argued that the statute provides two avenues for release of custodial law enforcement recordings: “An authorized” person could go through and identify “specifically by time and date the video they want released, and why,” Biller argued. “They’re not an authorized person [entitled to release]. So what does the statute say? It says file an action because a petition is a special proceeding with very circumscribed rights and very circumscribed procedure.”
Biller repeatedly argued that the media companies aren’t entitled to the recordings under the petition method, and instead should’ve filed a civil suit.
“There’s no opportunity for someone to walk into court and say, ‘There’s 150 hours; we don’t know what we want, but you, justice Dietz figure out what we should have and come back and tell us,’” Biller asserted. “That’s not how it works.”
Biller recalled from an initial hearing in Alamance County superior court on March 8, 2021, during which he said Tadych had told Hanford, “‘This is fine…Nobody was pleased about having to comb through dozens and dozens of recordings.’
He noted that Tadych had also stated during that March 2021 hearing, that his firm was also representing media companies that had also requested 151 hours of recordings from a gas explosion in downtown Durham, and had filed multiple petitions for other law enforcement agency recordings.
Dietz interjected, telling Biller, “I’m a little bit confused; I thought I heard you say, sort of the lead argument, sort of subject matter jurisdiction, because there’s a difference between a complaint and a petition. There needed to be a complaint in this case; one wasn’t filed, so [Hanford] had no jurisdiction. Is this sort of an alternative argument; because if everything we’re going to be addressing is a nullity, how are we going on to address a bunch of merits questions about whether [Hanford] erred?”
Justice Anita Earls also told Biller, “I still haven’t heard an explanation of why it would be different if this was called a complaint.”
Biller said the distinction rests with whether, and how, the city was notified of the petition for the release of the recordings captured by Graham police on October 31, 2020.
“If you file a complaint,” the attorney said, “there’s a heightened level of notice. They are served through the appropriate channels, which they were not in this case. The city is not a party here; the police chief is not an agent for receiving service. Summons were not issued, were not served in this case. But importantly then is the difference is you implicate the full rules for civil procedure.”
Justice Trey Allen noted that, “In a typical civil action, you don’t hold a hearing just because somebody filed a complaint; you hold a hearing because somebody filed a motion to be resolved, and you deal with the merits in a trial. So what kind of hearing is contemplated, and how is it different from the hearings required under the sections that use the word ‘petition’?”
Biller said, “I think you have two very different hearings if this is a traffic accident with one officer on the scene with one hour of recording, versus a gas explosion in Durham with 150 hours of recording and multiple sets of film.
“If this is the latter, the Graham and Alamance County case, where you have the better part of 100 hours of content and dozens of cameras, what I believe would be the appropriate mechanism, upon that hearing, the court [would] enter a protective order” and notify the attorney for the media companies that these recordings are designated for the “attorneys’ eyes only” and give them a defined period of time, such as five days, to review the footage.
The order that Biller envisions would further direct the companies to identify “what it is you want out of those recordings, and why” and attorneys for law enforcement would have a defined period of time to file any objections stating why they don’t want those recordings released, or whether and to what extent they should be redacted.
Rebuttal for the petitioners
Hugh Stevens, a founding partner in the same law firm Tadych works for, also offered a rebuttal before the Supreme Court during last month’s hearing in the case.
Stevens said, “In the interest of full disclosure, I’m a native of Alamance County,” before launching into his rebuttal. “I think whatever the legislature did here, they wanted to provide a mechanism, whatever label you want to put on it, whereby members of the public could seek to get copies of recordings made by law enforcement officials in exercising their duties and responsibilities.
“The question of narrowing one’s request is one I have dealt with for more than 40 years because the very nature of a public records case is that you are litigating over the proverbial pig in a poke,” Stevens elaborated. “You don’t usually know exactly what the public official has by way of records. You may know the categories, the general description, but there’s no way to know in advance exactly what you’re asking for…
“In number eight of judge [Hanford’s] findings, here’s what he said: ‘There is good cause shown to release all portions of the recordings. This court finds that the photos and the recordings speak for themselves, and this court does not have the authority to censor 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.’”
“I think a judge who wrote that last sentence,” Stevens added, “understood that he did have broad discretion, and that he was exercising that discretion.”
Justice Allen told Stevens, “He seems to have been under the impression that the default rule under the statute is release. Is that how you read the statute?”
“That’s how this court has read the Public Records Act generally for many, many years,” said Stevens.