State Employees Ass'n of North Carolina, Inc. v. North Carolina Department of State Treasurer , 200 N.C. App. 722 ( 2009 )

BEASLEY, Judge.

Plaintiff appeals from an order dismissing Plaintiff’s complaint for failure to state a claim pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. For the reasons stated below, we affirm.

Plaintiff is a nonprofit corporation incorporated in North Carolina, whose purposes include promoting the best interests and welfare of current, retired, and future employees of the State of North Carolina. On 1 February 2008, Plaintiff filed a complaint against North Carolina Department of State Treasurer (Defendant Department) and Richard H. Moore (Defendant Moore), Treasurer of the State of North Carolina (collectively Defendants). Under N.C. Gen. Stat. § 132-1 through 132-10, Plaintiff made a request for documents under public records law.

The complaint alleged that the 12 March 2007 issue of Forbes magazine published an article entitled “Pensions, Pols and Payola.” The article:

insinuat[ed] that the Defendant Moore had instituted a “pay for play” system over investment decisions as sole fiduciary for the $73 billion in the state retirement system, had initially failed to provide public record information about the identity and payments to individual investment fund managers hired or retained by his office, had hired a private law firm to handle Forbes’ inquiries, and only handed over those records after Forbes threatened him with a lawsuit.

Based on the information provided in the Forbes article, Plaintiffs Executive Director, on behalf of Plaintiff, wrote a letter to Defendant Moore on 1 March 2007. The letter requested the following information:

1. All documents from the Office of State Treasurer and the law firm retained regarding the dispute with Forbes over the magazine’s request for information and the documents provided to Forbes.

2. A complete accounting of how the law firm was paid and the total cost to taxpayers.

3. All investment reports that your office has been required during your tenure to file with the legislature under GS 147-69.3(h)-(i), any other investment reports that have been required to be publicly filed under state law and identification of such reports that have not been filed.

4. A list of all current investment managers, their performance by year (or total time if shorter than a year) and the total fee amounts being paid by your office.

In response to the March 2007 letter, Defendant Moore met with Plaintiffs Board of Governors, delivered to them 700 pages of public documents, and gave a presentation on those documents and the status of the pension fund. Plaintiff believed that the documents provided by Defendant Moore were incomplete and did not fully satisfy the March 2007 letter’s request. On 16 October 2007, Plaintiff wrote a second letter to Defendant Moore. Plaintiff requested the following records, in addition to the records requested in the first letter:

1. All private equity, hedge fund or real estate investments made or maintained by the Treasurer’s Office on behalf of the state’s pension funds since January 1, 2001. Please provide records that show the following information for each year that the investment was maintained by the Treasurer’s Office:

a. Name of the fund or partnership

b. Name of the principals, fund managers and general partners

c. Date of the initial commitment, initial investment and any follow-[up] communications

d. Amount of capital committed and the actual amount of funds paid

e. Cash paid out

f. Remaining or estimated value

g. Internal rate of return

h. Investment multiple or return on capital

2. Records that show the fees paid to each external investment manager for the state’s pension funds, including brokers, private equity managers, hedge fund, managers and real estate investment managers since January 6, 2001. Please provide records that show the fees paid on an annual or monthly basis.

3. Records that show the fees paid to each broker, bank or other financial institution that manages or holds the investments, cash and/or deposits in the Cash Management Program from January 6, 2001, to the present. Please provide records that show the fees paid on an annual or monthly basis.

4. Records that show all stocks held each year by the state retirement system (including externally managed funds) administered by the State Treasurer from January 6, 2001, to the present.

5. Records that show the identity of each person who has served on the State Treasurer’s investment committee since January 6, 2001. Please provide records that show the dates of service for each advisor, including any SEC investment advisor, registration forms or form ADV’s provided to or retrieved by the State Treasurer’s Office.

Plaintiff wrote a third letter to Defendant Moore on 6 December 2007, warning that if Defendant Moore did not supply the requested documents by 31 December 2007, Plaintiff would take “appropriate legal action to require your compliance with the Public Records Act.” After the 6 December 2007 letter, Plaintiff and Defendants exchanged six additional letters between 21 December 2007 and 24 January 2008. In a 21 December 2007 letter, Defendants communicated to Plaintiff that they believed their production of the more than 700 documents had fully satisfied Plaintiff’s 1 March 2007 request, and that if Plaintiff believed that there were “still outstanding documents from [their] requests”, it should provide Defendants with a list of specific information it desired.

In February 2008, Plaintiff filed a complaint alleging that Defendants had violated the North Carolina Public Records Act, set out in N.C. Gen. Stat. § 132-1 et seq. Plaintiff sought a declaratory judgment that the requested records be deemed public records under N.C. Gen. Stat. § 132-1 and an order requiring Defendants to produce the requested records to Plaintiff under N.C. Gen. Stat. § 132-9(a). In March 2008, Defendants filed an answer seeking dismissal of Plaintiff’s claims pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure for failure to state a claim upon which relief can be granted. In July 2008, the trial court entered an order granting Defendants’ motion to dismiss and dismissing Plaintiff’s complaint. From this order, Plaintiff appeals.

Plaintiff argues that the trial court erred in granting Defendants’ Rule 12(b)(6) motion to dismiss because Plaintiff’s complaint alleged all necessary elements to state a claim for production of records under the Public Records Act. For the reasons stated below, we disagree.

On appellate review, we must determine whether:

as a matter of law, the allegations of the complaint, treated as true, state a claim upon which relief can be granted. Dismissal under Rule 12(b)(6) is proper when one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiff’s claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff’s claim.

Wood v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002) (citations omitted). “In analyzing the complaint under Rule 12(b)(6), the complaint must be liberally construed.” George v. Administrative Office of the Courts, 142 N.C. App. 479, 481-82, 542 S.E.2d 699, 701 (2001). We review the trial court’s decision de novo. Id.

Plaintiff alleged in their complaint, that Defendants had “failed to provide copies of a significant portion of the public records requested in [the 1 March 2007 letter] and practically all of the public records requested in [the 16 October 2007] letter.” The Public Records Act:

codified in sections 132-1 et seq. of the North Carolina General Statutes “affords the public a broad right of access to records in the possession of public agencies and their officials.” . . . [It] permits public access to all public records in an agency’s possession “unless either the agency or the record is spécifically exempted from the statute’s mandate.”

Gannett Pacific Corp. v. N.C. State Bureau of Investigation, 164 N.C. App. 154, 156, 595 S.E.2d 162, 163-64 (2004) (quoting TimesNews Publishing Co. v. State of N.C., 124 N.C. App. 175, 177, 476 S.E.2d 450, 451-52 (1996)). In a claim under the Public Records Act,:

[t]he burden is on the [Defendants] to comply with Plaintiff’s request by reviewing its records and releasing all information relating to [Plaintiff’s request] defined as public records. If, after reviewing its records, [Defendants] determinef] it does not have custody of any information classified as public records, denial of Plaintiff’s request may be appropriate. Before this determination is made, however, dismissal of Plaintiffs’ complaint is premature.

Id. at 159, 595 S.E.2d at 165.

In the present case, Defendants alleged in their answer that they had reviewed their records and produced all responsive public records, amounting to over 2,000 pages. Defendants also alleged that other documents were “excepted from Plaintiff’s public records request as ‘trade secrets’ within the meaning of N.C. Gen. Stat. § § 132-1.2(1)a and 66-152(3)[.]” Defendants delivered numerous documents to Plaintiff, met with Plaintiff to offer an explanation of the records that were produced, and requested that Plaintiff provide a list of specific items that they believed were missing. After Defendants reviewed their records to determine which records were public, it was reasonable for Defendants to deny Plaintiffs requests regarding the public records that were not in their possession and records which contained trade secrets and therefore were within the public records exception.

We hold that the face of Plaintiffs complaint failed to state sufficient facts to make a valid claim under the Public Records Act. The complaint did not allege that Defendants were in possession of any particular public records that were being wrongfully withheld from Plaintiff, but merely alleged that Defendants had failed to provide portions of the requested public records. Because Defendants reviewed their records and requested that Plaintiff provide a list of specific information they believed to be missing, Defendants met their burden. The granting of Defendants’ Rule 12(b)(6) motion was not premature.

The dissent contends that “the majority’s interpretation of the elements of a legitimate claim under the Public Records Act is inconsistent with our holding in Gannett Pacific Corp. v. N.C. State Bureau of Investigation, 164 N.C. App. 154, 595 S.E.2d 162 (2004).” We hold that the procedures followed by Defendants were consistent with the procedures contemplated by Gannett. Defendants fully complied by reviewing and releasing all public records that were in their custody, pursuant to Plaintiff’s requests. The dissent also believes that the definition of “public records” does not include a “possession” requirement. N.C. Gen. Stat. § 132-6(a) (2007) states that “[e]very custodian of public records shall permit any record in the custodian’s custody to be inspected and examined. . . .” (emphasis added). Accordingly, the plain language of the statute suggests that a custodian of public records is required to only produce public records in their custody. We hold that although Plaintiff did not have the burden of showing Defendants’ possession of the requested public records, Defendants correctly reviewed their records, determined which public records were in their possession, and produced the responsive public records.

For the foregoing reasons, we affirm the trial court’s order and hold that the trial court did not err in granting Defendants’ motion to dismiss pursuant to Rule 12(b)(6).

Affirmed.

Judge BRYANT concurs. Judge ELMORE dissents by separate opinion.