Mediation of Public Records Disputes is Jurisdictional

Published for Coates' Canons on December 22, 2017.

You’ve requested copies of city documents that you believe to be public records. The city has refused to provide them, saying that they are confidential. You file a lawsuit under G.S. 132-9 to obtain access to the records. You are not aware that state law (G.S. 7A-38.3E) requires mediation of public records disputes. The litigation proceeds and the court orders the city to produce the records. The city appeals. What happens? According to a recent North Carolina Court of Appeals case, the court order will be vacated. The statutory public records mediation requirement must be met in order for a court to have subject matter jurisdiction over any case regarding access to public records.

The case is Tillett v. Town of Kill Devil Hills, which arose out of a dispute between Superior Court Judge Jerry Tillett and the Town of Kill Devils Hills police department. Judge Tillett requested access to police department records. The town provided some records but withheld others that it claimed were protected by several public records law exceptions. The trial court ordered the town to provide some of the withheld documents. Both parties appealed.

The town asserted that the trial court did not have jurisdiction to consider the case, citing this provision in the public records law:

Any person who is denied access to public records for purposes of inspection and examination, or who is denied copies of public records, may apply to the appropriate division of the General Court of Justice for an order compelling disclosure or copying, and the court shall have jurisdiction to issue such orders if the person has complied with G.S. 7A-38.3E. 

G.S. 132-9 (emphasis added).

The legislature first created the civil remedy in the public records law in 1975 (G.S. 132-9, S.L. 1975-787). As originally enacted, it read just like it does now, except that it did not include the phrase “if the person has complied with G.S. 7A-38.3E.” That phrase was added in 2010 when the legislature enacted the law creating a mediation requirement for public records cases – S.L. 2010-169 sec. 21.  (For more information about the public records mediation requirements see my blog post here.) So until 2010, the statute simply described who has standing to sue for records and which court has jurisdiction to hear public records cases. The new phrase clearly added a litigation requirement, but what kind?

Procedural or Jurisdictional?

The court of appeals noted that some legislative litigation requirements are considered to be procedural and others are jurisdictional. Procedural rules “ensure that the legal system adjudicates the claim in an orderly way,” and the failure to follow them can be waived or excused by the court. Tillet v. Town of Kill Devil Hills, slip op. at 4. Jurisdictional requirements go to the court’s power to hear the matter and cannot be waived or excused. Id.

The court noted that a mediation requirement might typically be considered to be procedural. Id at 5.  Indeed, the public records mediation provision is fashioned after existing mediation requirements for superior court cases under G.S. 7A-38.1, enacted in 1995, and multiple additional similar mediation programs designed to promote settlement of disputes “and make civil litigation more economical, efficient, and satisfactory to litigants and the State.” G.S. 7A-38.1(a); see also G.S. 7A-38.3 (farm nuisance disputes), G.S. 7A-38.3A (insurance claims), G.S. 7A-38.3B (matters within the jurisdiction of the clerk of superior court), and G.S. 7A-38.3D (district court criminal cases). The provisions of these statutes seem very much like procedural requirements, and do not appear to contain language suggesting that they are jurisdictional in nature.  Based on the wording in G.S. 132-9, however, the court concluded that the legislature “has given the courts a ‘clear indication that the mandatory mediation requirements…are jurisdictional requirements that must be satisfied for the courts to have the power to adjudicate the dispute.” Tillett at 5-6.

A key requirement in the mediation statute is that that a person filing a civil action under Chapter 132 must initiate a mediation no later than 30 days from the filings of responsive pleadings. G.S. 7A-38-3E(b). Since Judge Tillett conceded that he did not initiate mediation, the Court vacated the trial court order for lack of jurisdiction. Id. The court noted that the ruling does not prevent Judge Tillett from pursing his request again and properly acquiring jurisdiction by initiating mediation.

As a consequence of this decision, those seeking public records will be required to initiate mediation in order to proceed to trial. Although I have no data on the use of mediation as a tool for resolving public records disputes, I have heard of several circumstances in which the process helped to refine and clarify requests leading to resolution of the dispute. In my earlier blog post I described the court ordered mediation process and provided some tips and issues to consider for public records mediations.

It appears from the statute, that the jurisdictional requirements can be met without actually conducting mediation. The public records mediation statute authorizes the parties to waive mediation. See G.S. 7A-38.3E(e). Under this provision the parties may avoid mediation simply by informing the mediator in writing that they wish to waive mediation. The mediator then informs the clerk that the mediation has been concluded and the trial can proceed.

In addition, it is interesting to note that the public records mediation law contains the following provision:

[Other Remedies Not Affected.] – Nothing in this section shall prevent a party seeking production of public records from seeking injunctive or other relief, including production of public records prior to any scheduled mediation.

G.S. 7A-38.3E(h).  This seems to allow a party to petition the court to obtain the very records that are the subject of a mediation before the mediation occurs. Perhaps it is intended to allow temporary or immediate relief under circumstances where it is necessary to prevent harm or preserve the status quo, but the language does not limit the relief that may be sought to these terms.

While the language of G.S. 132-9 certainly supports the court of appeals opinion, the waiver and “other remedies” provisions don’t seem to square with the concept that mediation is jurisdictional. Nonetheless, public agencies now have a powerful defense in public records cases if the the plaintiff fails to initiate mediation in a timely manner.

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Topics - Local and State Government