Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, June 7, 2007

North Carolina Appeals Court Holds That Public Records Act Does Not Apply to Clemency Applications

The North Carolina Court of Appeal has held that the state's public records act does not apply to applications for clemency in News and Observer Publishing Co. v. Easley.

The newspaper had asked the Governor of the state to produce records pertaining to requests for clemency. The court said in its opinion, "With respect to the N&O's request for clemency records, we hold that N.C. Const. art. III, §5(6) carves out a limited area in which the General Assembly may exercise its authority as to clemency. The constitution expressly allows the General Assembly to enact legislation “relative to the manner of applying for pardons.” Id. All other clemency authority rests with the Governor. We have further concluded that this constitutional provision requires that the legislation specifically relate “to the manner of applying for pardons” and, therefore, legislation such as the Public Records Law, which does not specifically reference clemency, cannot be allowed to intrude upon the Governor's clemency authority. We, therefore, uphold the trial court's dismissal of the N&O's lawsuit pursuant to N.C.R. Civ. P. 12(b)(6)....This case does not involve judicial review of the Governor's exercise of clemency power. Instead, the question before the Court is whether the N&O is entitled, under the Public Records Law, to certain clemency records within the possession of the Governor. The answer to that question turns not on a political question, but on the meaning of our constitution's proviso that the Governor's power is subject to legislation “relative to the manner of applying for pardons.” The principle that questions of constitutional and statutory interpretation are within the subject matter jurisdiction of the judiciary is just as well established and fundamental to the operation of our government as the doctrine of separation of powers....Because the outcome of this litigation is governed by the meaning of N.C. Const. art. III, §5(6), we conclude that the judicial branch has authority to resolve this dispute, and we reject Governor Easley's challenge to our subject matter jurisdiction. The trial court, therefore, did not err in denying the Governor's motion to dismiss for lack of subject matter jurisdiction.

"We turn now to the question whether the North Carolina Public Records Law can be invoked to require the Governor to produce the disputed clemency records. That legislation provides a right of access to “[t]he public records and public information compiled by the agencies of North Carolina government.” N.C. Gen. Stat. §132- 1(b) (2005). This right of access is broadly enforceable by “[a]ny person who is … denied copies of public records.” N.C. Gen. Stat. §132-9(a) (2005). The Governor argues that applying the Public Records Law to clemency documents would violate separation of powers principles. “[F]or more than 200 years, [North Carolina] has strictly adhered to the principle of separation of powers.” .... This principle, of course, distributes the power to make law to the legislature, the power to execute law to the executive, and the power to interpret law to the judiciary....In response to the Governor's argument, the N&O relies upon Poole, arguing that the Supreme Court held that application of the Public Records Law to require the executive branch to make documents public does not implicate the separation of powers doctrine. The N&O points out that the Court reasoned: “The only decision cited by defendants bearing on the separation of powers doctrine, [Wallace v. Bone], involved two branches of government interfacing with each other. That decision is inapposite here. The Public Records Law allows intrusion not by the legislature, or any other branch of government, but by the public. A policy of open government does not infringe on the independence of governmental branches. Statutes affecting other branches of government do not automatically raise separation of powers problems.”.... We disagree with the N&O's view that Poole necessarily held that the Public Records Law could never raise separation of powers issues. The defendants in Poole were asking the Court to adopt a “preliminary draft” exception to the Public Records Law to protect from disclosure draft reports resulting from an investigation of the N.C. State University basketball program. The Court's holding regarding the separation of powers rejected the defendants’ argument that a “preliminary draft” exception was necessary “to prevent the legislature from intruding into the decision-making processes of other government branches … .” Id. In rendering its holding, the Court emphasized that defendant had “cited no controlling authority … and failed to cite or rely on the state Constitution … .” Id. (emphasis added). This case, however, involves a specific, broad constitutional commitment of power to the executive branch and an accompanying narrow grant of authority to the legislature. N.C. Const. art. III, §5(6). Consequently, what was missing in Poole — an express constitutional grant and limitation of authority — is present here. When considering other specific grants of power to the Governor in N.C. Const. art. III, §5, our Supreme Court has held that a statute “constitut[ing] an encroachment upon the duty and responsibility imposed upon the Governor” in that Article “violates the principle of separation of governmental powers.” ...We do not, therefore, read Poole as mandating production of the clemency records. By the same token, we cannot accept the Governor's argument that the separation of powers doctrine precludes the General Assembly from enacting any legislation relating to clemency. Just as the General Assembly may not intrude on the clemency power granted to the Governor by N.C. Const. art. III, §5(6), neither may the Governor — or the judicial branch — intrude upon “the power [that] was specifically outlined by the state constitution as belonging to” the General Assembly with respect to clemency...."
Further, the Court said, "The N&O argues that language specifically making such records subject to the Public Records Law “would be redundant and unnecessary, because the Public Records Law is a ‘regulation’ of general applicability” and “that ‘regulation’ contains no exemption for clemency records… .” This contention, however, disregards the constitution's requirement that, with respect to clemency, there must be specific and not general legislation. It is not enough that the General Assembly did not exempt clemency records from a generally-applicable statute; it must have expressly chosen to exercise its authority to include them. Because of the specific language of the constitution and the separation of powers implications, we deem it inappropriate to infer an otherwise unspecified intent.
We hold, therefore, that the N&O may not use the Public Records Law to compel Governor Easley to disclose the requested documents. The trial court, therefore, properly dismissed the N&O's complaint for failure to state a claim upon which relief could be granted."
The case is News & Observer Publishing Co. v. Easley, 641 SE2d 698 (2007).

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