Judge hears arguments in public-records lawsuit for Asheville police audit

Written by on September 4, 2012 in APD Evidence-Room Audit, Buncombe, Community, Open Government, People, Politics, Region, Top News Comments Off
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Letts considering case, will issue ruling

Buncombe County Superior Court Judge Bradley Letts presided over a hearing Tuesday about the release of the Asheville Police Department’s evidence-room audit. Five media organizations, including Carolina Public Press, filed suit in June pressing for the city of Asheville and the Buncombe County District Attorney’s Office to release the document to the public. Matt Rose/Carolina Public Press.

In Buncombe County Superior Court today, Judge Bradley Letts heard arguments in a public-records lawsuit filed in June by a coalition of area media outlets. The plaintiff’s complaint cites North Carolina’s Public Records Act to argue that an extensive audit of the Asheville Police Department should be released to the public, an assertion refuted by the suit’s defendants, the city of Asheville and the Buncombe County District Attorney’s office.

At the conclusion of the hearing, which lasted about two hours, Letts said he would take the arguments under advisement and issue a ruling. He did not say when that could occur.

The audit in question was commissioned by Asheville City Council in April 2011 and conducted by the private firm Blueline Systems and Services. A sole copy of the document was delivered to Buncombe County District Attorney Ron Moore in January 2012, and he has since refused to release any portion of it. The city of Asheville, for its part, has not obtained a copy.

The media coalition, which also include the Asheville Citizen-Times, Mountain Xpress, WCQS and WLOS, was represented by Charles Coble, a Raleigh-based attorney. Charlotte-based attorney Anthony Fox represented the city of Asheville and Asheville-based attorney Ronald Payne represented the office of the Buncombe County district attorney.

Raleigh-based attorney Charles Coble represented the media coalition in the case, asserting that the city of Asheville and the district attorney’s office had failed to provide any explanation of why sensitive portions of the audit could not be excised out. Matt Rose/Carolina Public Press

During the hearing, Coble reiterated arguments made in the complaint, asserting that the audit is properly a public record and that “it really falls upon the defendants to justify their failure to disclose the record at issue in this case.”

He argued that the defense, in affidavits filed before the hearing, had offered no evidence that the audit was exempt from the state’s Public Records Act. The document is largely an inventory of items in the evidence room, he said, as opposed to a criminal investigative record that might be covered by an exception in the law.

Coble also noted that the city’s contract with Blueline specified the city is due a copy of the audit, even if portions are redacted first.

The city, Fox argued, doesn’t possess a copy of the audit, and will not until Moore determines the document can be released.

“The DA is the custodian of the report,” Fox said.

Anthony Fox, right, represented the city of Asheville at the Tuesday hearing in Buncombe County Superior Court. He and Ronald Payne, left, who represented Buncombe County District Attorney Ron Moore, argued against the document’s release saying, in part, that its release would jeopardize criminal investigations. Matt Rose/Carolina Public Press

The contract for the audit, he stressed, stipulated that the city would receive a copy only after the district attorney gives Blueline the go-ahead to release a version.

“It’s not a public record yet,” Fox said. “The contract doesn’t give the city the ability to ask for the record from Blueline.”

City Attorney Bob Oast attended the hearing, but did not speak to the court and declined to comment afterwards.

Moore did not attend the hearing, and his attorney initially argued that Moore’s office was improperly named in the complaint and should be excused from the lawsuit.

“There is no such entity as the ‘Buncombe County District Attorney’s Office,’ ” Payne said, asserting that the complaint should have instead named “the Office of the District Attorney of the 28th Prosecutorial District.”

In response, Coble submitted an amendment saying the plaintiffs are willing to change the wording of the identification of Moore’s office.

Payne also said that Moore is obligated to wait out the State Bureau of Investigation’s probe of the evidence room before he can release any of the audit. Furthermore, he argued that redacting portions and releasing parts of the audit is not a ready option.

“This (audit) is 15 volumes,” he said. “This is not looking through a comic book and making a few changes. … This will take a lot of time, and the DA has a lot of other duties other than editing something for the benefit of the press.”

Later in the hearing, Coble noted that while “it is a big document,” the audit has been in Moore’s custody for eight months, and the Public Records Act directs state agencies to provide public records “as promptly as possible.”

Concluding the hearing, Letts said he would take all of the discussed matters under advisement and share his ruling once it is completed.


Special Report

Go here for more of Carolina Public Press’ investigation into the Asheville Police Department’s evidence room.

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About the Author

Jon Elliston

Jon Elliston is the Investigations and Open Government Editor at Carolina Public Press. Contact him at jelliston@carolinapublicpress.org.

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