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The city of Charlotte does not immediately have to release records of police contracts and purchases ahead of the Republican National Convention, according to a Mecklenburg County Superior Court judge’s decision Thursday.
During a hearing, the court tested two aspects of public records law that impact the procedure for getting records from a government agency and the exemptions government agencies can claim.
On Oct. 28, 2019, the American Civil Liberties Union of North Carolina submitted a public records request to the city of Charlotte for a wide array of contracts, agreements and purchases that the city and its Police Department made in preparation for the Republican National Convention, which is scheduled for Aug. 24-27.
The city did not provide the records, and the ACLU sued on Aug. 3. While state law does not identify a specific time frame in which public records must be provided, it stipulates that they be furnished “as promptly as possible.”
Although the city provided additional documents in the days before the hearing, such as contracts for portable toilets, the city cited an exception in the public records law for security plans to withhold several contracts.
The ACLU argued that any sensitive information could be redacted, though the lawyer for the city of Charlotte, Roger McCalman, said there would be little left unredacted.
“Who we are purchasing items from and what we are purchasing is what we are asserting is sensitive security information,” McCalman said.
Part of the legal test in public records cases is whether the public interest in the documents outweighs the government’s interest in withholding the documents.
In this hearing, the question was whether the public interest to know what purchases the police department had made was more important than the city’s interest in keeping that information private for security purposes.
“When we’re dealing with security information, the balance of the equities is not with the plaintiffs,” Judge Casey Viser said in his decision from the bench.
Though the court denied the ACLU’s motion, the case over the release of the records is ongoing.
This hearing only addressed the ACLU’s request that the records be released immediately. The ACLU’s attorney, Dan Siegel, argued that the public has an immediate interest in the contracts ahead of the convention.
“North Carolinians deserve to know the types of crowd control, surveillance and munitions they may face if they choose to exercise their constitutionally protected rights of speech, assembly and expression while the Republican National Convention is taking place in their home state,” Siegel said in a press release after the hearing.
Military-grade weapons hypothetically?
Siegel did not provide evidence that Charlotte is actually buying military-grade weapons, though he alluded to this hypothetical several times. In a statement to Carolina Public Press, the ACLU highlighted the Charlotte Police Department’s recent use of “chemical agents, flash-bangs and other weaponry” in response to protests.
McCalman, Charlotte’s lawyer, said he was in no way admitting that the city purchased any kind of military weapon, but “hypothetically, if such weapons were being purchased, they will be for the security purposes of the RNC” and would therefore not be subject to public records law.
McCalman did not specify any information about the contracts that were being withheld. Siegel argued that the city needed to provide some evidence that the documents had something to do with security in order to claim that public records exemption.
However, the judge asked whether that would defeat the point, as describing the records would reveal what is in them.
“How specific do they need to be?” Viser asked.
“I don’t think we can answer that question with mathematical precision but I would submit that it’s more specific than what we have here,” Siegel said.
Charlotte Police Chief Johnny Jennings said publicly that the records would be released sometime after the Republican National Convention, Siegel said in the hearing. It is not clear when that release will take place.
The ACLU did win on a procedural matter in the court.
State law says that parties in a public records dispute must go through mediation before pursuing litigation, unless both parties waive that step.
Since there was no mediation in this case, McCalman argued that the court did not have jurisdiction over the case.
That was a legitimate argument, according to Frayda Bluestein, a Distinguished Professor of Public Law and Government at the University of North Carolina School of Law.
“Court-ordered mediation has been a strategy to reduce litigation and promote settlement,” Bluestein wrote in an email to CPP.
Siegel argued that the law requiring mediation did not apply because the hearing was about a temporary restraining order, which is a tool to get a partial decision on the case quickly. The hearing was not about all of the records the ACLU requested, but the ones the city already had in hand.
Part way through the hearing, Viser announced that he would take jurisdiction for this hearing. At the end of it, he denied the ACLU’s request that the documents be immediately turned over.