STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE WAKE COUNTY SUPERIOR COURT DIVISION > 20CVS GRAY MEDIA GROUP, INC. D/B/A") ~3 WBIV, ) ) Plaintiff, Ke ) ROY COOPER, in his capacity as Governor of the State of North Carolina; ERIK A. HOOKS, in his capacity as Secretary of the North Carolina Department of Public Safety; and GLENN M. MeNEILL, in his capacity as Commander of the North Carolina State Highway Patrol, VERIFIED COMPLAINT AND REQUEST FOR MEDIATION PURSUANT TO N.C. GEN, STAT, § 7A-38.3E v. Defendants. Pursuant to Rules 3, 7, and 8 of the North Carolina Rules of Civil Procedure the plaintiff, complaining of the defendants, alleges and says the following: Introduction This action is pursuant to the North Carolina Public Records Law, contained in Chapter 182 of the General Statutes. As described more specifically in the numbered allegations set out below, plaintiff seeks: (2) a preliminary order compelling defendants to appear and bring before the court the records that are the subject matter of this action; (2) an order compelling the defendants to permit the inspection and copying of public records pursuant to N.C. GEN. Stat. § 182-9(a) and otherwise;(8) an order in the nature of a writ of mandamus requiring the defendants to comply with the Public Records Law including, but not limited to, N.C. GEN. STAT. § 132-6(a); and (4) an order, pursuant to N.C. GEN. Star. § 132-9(¢)(1), awarding plaintiff reasonable attorneys’ fees, to be charged against the operating expenses of the responsible agency or to be paid personally by any public employee or public official found by the court to have knowingly or intentionally committed, caused, permitted, suborned, or participated in a violation of the Public Records Law. The Parties 1, Plaintiff Gray Media Group, Inc. d/b/a WBTV (WBTV’) is a Delaware corporation that is authorized by the North Carolina Secretary of State to do business within the state and whose principal place of business is located in Charlotte, Mecklenburg County, North Carolina. WBTV covers news in Greater Charlotte and the surrounding areas of North Carolina and South Carolina, and State-wide issues throughout North Carolina. WBTV also disseminates online coverage at www.wbtv.com 2. Roy Cooper is the duly elected and serving governor of the State of North Carolina and is sued in that official capacity. As the Governor, defendant Cooper is a public agency of the North Carolina government as defined by N.C. GEN. Star. § 132-1(a) and is custodian of records that are public under Public Records Law.5. Erik A. Hooks is the duly appointed and serving Secretary of the Department of Public Safety and is sued in that official capacity. As Secretary of the Department of Public Safety, defendant Hooks is a public agency of the North Carolina government as defined by N.C. GEN. Star. § 12-1(a) and is custodian of records that are public under Public Records Law. 4. Glenn M. McNeill is the duly appointed and serving Commander of the North Carolina State Highway Patrol. As Commander of the North Carolina State Highway Patrol, defendant McNeill is a public agency of the North Carolina government as defined by N.C. GEN. Star, § 192-1(a) and is custodian of records that are public under Public Records Law. ions Precede: risdicti Venue and Con 5. This Court has subject matter jurisdiction over the issues raised herein pursuant to N.C. Grn. STAT. § 132-9 and otherwise. 6. ‘This Court has personal jurisdiction over all the parties pursuant to N.C. GEN. Star. § 1-75.4(1). 7. Venue for this action is proper in the Superior Court of Wake County pursuant to N.C. GEN. Star. §§ 1-77 and 1-82. 8. The North Carolina General Assembly has waived sovereign immunity for plaintiffs’ claims by enactment of the North Carolina Public Records Law and otherwise.9. Plaintiffs respectfully request the initiation of mediation of this dispute pursuant to N.C. GEN. Star. § 7A-38.3E. Accord, Tillett v, Town of Kill Devil Hills, 89 $.E.2d 145 (2017). North Carolina Law 10. The North Carolina Public Records Law (‘the Public Records Law”) is codified at N.C. GEN. Star. §§ 152-1 through 132-10. The public policy underlying the Public Records Law is set out in N.C. GEN. Star. § 132-1(6), which provides: The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the People. Therefore, it is the policy of this State that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law. As used herein, ‘minimal cost’ shall mean the actual cost of reproducing the Public record or public information. 11, The Public Records Law provides, in N.C. GEN. Star, §132-1(a), that public records are defined as: all documents, papers, letters, maps, books, photographs, films, sound recordings, magnotic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions. (Emphasis supplied) 12. The Public Records Law further provides that “Every custodian of Public records shall permit any record in the custodian’s custody to be inspected and examined at reasonable times and under reasonable supervision by any person, and shall, as promptly as possible, furnish copies thereof upon payment of any fees as may be prescribed by law.” N.C. GEN. STAT. §132-6(a).13. On or about 29 July 2019, WBTV's Chief Investigative Reporter Nick Ochsner made public records requests to NCDPS and NCSHP for all EP-20, EP-21 and EP-25 forms (in draft and final form) for travel by the Governor on 31 January and 20 June 2019. On 1 August 2019, seven Form EP-21s were produced to Mr. Ochsner. In responding, Mr. Ochsner was told that “[t]here are no EP 25's in these instances.” A true and accurate copy of the email thread and documents produced are attached as Exhibit A. 14. On 8 August 2019, Mr. Ochsner followed-up on the assertion that no EP-25 Forms exist for the two dates in question. A true and accurate copy of the email thread of that back-and-forth is attached as Exhibit B. 15. On 18 October 2019, Mr. Ochsner submitted another pubic records request to NCDPS and NCSHP. He clarified his request on 22 October 2019, Mr. Ochsner received a response that no further records would be provided. A true and accurate copy of Mr. Ochsner’s request, clarification and the back-and-forth email thread is attached as Exhibit C. 16. While Mr. Ochsner received some responsive records to his first request and no responsive records to his second request, plaintiff is informed and believes that the defendants have no intention of voluntarily producing any additional responsive documents to WBTV or providing lawful justification(s) for not producing responsive documents — including without limitation EP-25As — claiming N.C. GEN. Stat. § 182-1.7(a) as exemption despite producing the samedocuments in response to virtually identical requests previously including in Fesponse to requests involved in Real Facts NC and WBTV, LLC! v. Roy Cooper Erik Hooks and Charles “Vic” Ward, (Wake Co. Sup. Ct. File No. 16-CVS-11171). 17. For the same reasons, plaintiff is informed and believes that the defendants are knowingly and intentionally violating the Public Records Law. WHEREFORE, plaintiff respectfully prays the court: 1. Accord this matter priority and set it down for an immediate hearing pursuant to N.C. GEN. Star. § 132-9(1); 2 Enter a preliminary order requiring the defendants (a) to bring the requested records before the court for in camera review and (b) show cause, if any, why the plaintiff is not entitled to obtain the requested record: Enter an order declaring the requested records are public records Pursuant to the Public Records Law and requiring the defendants to provide plaintiff with a copy of the same; 4. Enter an order awarding plaintiff its reasonable attorney fees pursuant to N.C. GEN. STAT. § 132-9(0); and 5. Provide plaintiff with such further and additional relief as the court shall deem just, proper and authorized by law, and that the costs of this action be taxed against the defendants. ‘Now Gray Media Group, Inc. d/b/a WBTV (‘WBTV’), 6Respectfully submitted this the e day of January, 2020. ‘STEVENS MARTIN VAUGHN & TapycH, PLLC Michael J. Tadych N.C. State Bar No. 24556 Hugh Stevens N.C. State Bar No. 4158 C. Amanda Martin N.C. State Bar No. 21186 1101 Haynes Street, Suite 100 Raleigh, NC 27604 919.582.2300 866-593-7696 toll free facsimile Attorneys for PlaintiffPat Pritchard ee From: Knox, Christopher D. Sent: Thursday, August 01, 2019 5:11 PM To: Ochsner, Nick Ce: Baker, Michael D. Subject: Public Records Response Attachments: EPDocs!.pdf; EPDocs1.2,pdf Nick, Please find the attached documents pursuant to your public records request submitted July 29, 2019, There are no EP 25's in these instances. Respectfully, Christopher D. Knox | Sergeant N. C. Department of Public Safety N.C. State Highway Patrol Public Information Office 4231 Mail Service Center Raleigh, N.C. 27699-4231 P. (984)349-6577 C.(336)312-0198 Christopher [email protected] Website: www.nedps.gov From: Ochsner, Nick [mailto:[email protected] Sent: Wednesday, July 31, 2019 10:25 PM To: Knox, Christopher D. Ce: Baker, Michael D, Subject: Ri Set. Knox- Thank you for the update regarding my public records request. Can you please provide a date by which you anticipate providing the requested records? Thanks- Nick From: Knox, Christopher D. ‘Sent: Wednesday, July 31, 2019 6:54 PM To: Ochsner, Nick Cc: Baker, Michael D. EXHIBIT Subject: RE: [External] Public records request 1Nick, {Just wanted to pass along that your public records request below isin the process of being fulfilled Although | have begun working on it, it has not yet been completed, Thank you, Christopher D. Knox | Sergeant N. C. Department of Public Safety N. C. State Highway Patrol Public Information Office 4231 Mail Service Center Raleigh, N.C. 27699-4231 P. (984)349-6577 €.336)312-0198 Christopher. [email protected] Website: www.nedps.gov From: Ochsner, Nick [mallto:noch: com! Sent: Monday, July 29, 2019 12:00 PM To: Baker, Michael D.; Knox, Christopher D. ‘Subject: [External] Public records request Importance: High Pl es ey F/Sgt. Baker & Sgt. Knox- Pursuant to the Public Records Act, .S. 132-1, et seq, | request copies ofthe following records “Any and all Forms EP-20, EP-21, and EP-25 (drafts and final versions) for travel on January 32, 2019 and June 20, 2019, Given the extremely limited scope of documents in this request, | ask you produce any responsive records by COB this Wednesday, July 31, 2029. Please let me know if you have any questions or need clarification regarding my request. Thanks- Nick Nick Ochsner | Ct [email protected] W: 704.374.3941 | C: 704.641.7538 NEWSROOM: 704.374.3691 COWEN cay —whtv.com i ® i— Investigative ReporterEVENT REIMBURSEMENT MILEAGE MONTHLY SUMMARY ‘State Highway Patio! EXECUTIVE PROTECTION DETAIL fon» — Tree lestnay—leore ‘Governor Roy Cooper Date Sounty February 1.2016] Wake February 22019] wate Fetevay 28.2019] Gumors February 26.2019] Wake Seba 27.2016] Crange eben 20,2010] Wate otal tas Bie: 21awon North Carolina swan Slate Highway Patrot EXECUTIVE PROTECTION DETAIL EVENT REIMBURSEMENT MILEAGE MONTHLY SUMMARY [Montn__fvear Leman) fore ‘Governor Rey Cooper Date, county Event suv Fra ssousy 23,2010] wake Luncheon 4 Janay 24,2016] Wake Reception 2 deovary 28.2019] Guin Meeting 159 Jeousry 28,2010] Wake Brosktost 2 ovary 38,2010] Woke Meotng 2 Tota es ited: 2mi Noth Carina site ney Pel EXECUTIVE PROTECTION DETAIL EVENT REIMBURSEMENT MILEAGE FORM Protectes Governor Fay Coope Evont Date cava 2018 Event Tine +220 Event Location Raleigh Event County Wake Event Number of SHP Vehico(s) Used ‘otal Event Mileage 29 (includ all vehicles)Be North Carolina State Highway Patrol EXECUTIVE PROTECTION DETAIL EVENT REIMBURSEMENT MILEAGE FORM ——— Number of SHP Vehiclo(s) Used —_ ‘Total Event Mileage Protoctoe ‘Governor Roy Cooper Event Date ovs1/2019 Event Tine 7:00 AM Event Location Faasigh Event County Wake Event Mecting 29 (include all vehicles)eo, North Carolina State Highway Patro! EXECUTIVE PROTECTION DETAIL EVENT REIMBURSEMENT MILEAGE MONTHLY SUMMARY lune pore | other [rotation] 29 Total mies Bid aBe Noy carcina sua ny Patel EXECUTIVE PROTECTION DETAIL EVENT REIMBURSEMENT MILEAGE FORM Prtecee Coveney Comper evento cwzano10 Evert Tine soa vent Location Fale Ent Cony vile Number of SHP Vehicles) Used Total Event Mileage 29 (include all vehicles)= North Carolina ‘State Highway Patrol EXECUTIVE PROTECTION DETAIL EVENT REIMBURSEMENT MILEAGE FORM Protectee ‘Governor Roy Cooper Event Date 06/21/2018 Event Time 2:50 AM,Pat Pritchard ————————————— Knox, Christopher D. Friday, August 16, 2019 845 PM Ochsner, Nick Walker, Pamela; Baker, Michael D. Subject: RE: [External] RE: WBTV Aug. 1 record request Nick, Directive 1.07 was last revised 11/10/2004 and is the most current version of the policy. This poli establishes guidelines for the preparation of operational plans forthe executive protection detail and does not address the completion of specific forms. As to your follow-up request for documents, we have provided the public records we have that are responsive to the dates in question. Respectfully, Christopher D. Knox | Sergeant N.C. Department of Public Safety N. C. State Highway Patrol Public Information Office 4231 Mail Service Center Raleigh, N.C. 27699-4231 P. (984)349-6577 C.(336)312-0198 Christopher [email protected] Website: www.nedps.gov From: Ochsner, Nick [mailto:[email protected]] Sent: Tuesday, August 13, 2019 6:07 PM ‘To: Knox, Christopher D.; Walker, Pamela Ce: Baker, Michael D. ‘Subject: RE: [External] RE: WETV Aug. 1 record request Set. Knox- Thank you for the additional information. Do you have a document you can provide me that outlines the apparent change in policy? Otherwise, the policy Pam sent me last week appears to have not been updated since 2004, Also, based on the representations in your email below, ist accurate to say that nobody in the Executive Protection Unit Bets details on where the Governor is traveling when he goes out of state? And nobody in EPU gets details of where he is to be dropped off at when he gets to the airport, etc? Any records or documents with any information ofthat nature for the two days subject to my request would be responsive inthis instance. lease produce them immediately, Thanks- Nick EXHIBITFrom: Knox, Christopher D. Sent: Tuesday, August 13, 2019 5:54 PM To: Ochsner, Nick ; Walker, Pamela Ce: Baker, Michael D. Subject: RE: [External] RE: WBTV Aug. 1 record request Nick, According to our records, no EP-25 has been created for out of state travel since November 2014. At that p Patrol changed its practice of completing tis form for out of state travel due to its nonessential nature. As previously indicated, the purpose of an EP-25 is for the Executive Protection Detail to coordinate the Governor's travel details with other members ofthe State Highway Patrol inthe county of the scheduled event. Therefore, itis only generated when the governor travels outside of Wake County but within the State of North Carolina, ‘According to our review, there are no other public records responsive to your request. Respectfully, Christopher D. Knox | Sergeant N.C. Department of Public Safety N.C. State Highway Patrol Public Information Office 4231 Mail Service Center Raleigh, N.C. 27699-4231 P. (984)349-6577 C.(336)312-0198 Christopher. [email protected] Website: www.nedps.gov From: Ochsner, Nick [mailto:nochsner @wbty,com Sent: Tuesday, August 13, 2019 2:05 PM To: Walker, Pamela Cc: Baker, Michael D.; Knox, Christopher D. ‘Subject: RE: [External] RE: WBTV Aug. 1 record request 2 ae Hi Pam- i'm following up on our email exchange from last week to see if you have any additional information and/or responsive documents to provide? Thanks- Nick From: Walker, Pamela Sent: Thursday, August 08, 2019 1:48 PM. To: Ochsner, Nick Subject: RE: [External] RE: WBTV Aug. 1 record requestNick, | or someone from the SHP will get back to you. Was only trying to assist while the SHP PIOs were out of the office. Pam Pamela Walker Communications Director North Carolina Department of Public Safety 512 N. Salisbury Street MSc 4202 Raleigh, NC 27699 919-733-5027 (Main) 010-733-0296 (Fax) [email protected] www.nedps.gov (DPS website) Prevent ~ Protect ~ Prepare From: Ochsner, Nick Sent: Thursday, August 8, 2019 11:00 AM To: Walker, Pamela ‘Subject: [External] RE: WBTV Aug. 1 record request Ze a. ee Hi Pam- Thanks for getting back to me and for providing the policy, which I note was last revised in 2004, meaning the same policy was in effect for both the McCrory and Cooper administrations I've attached five examples of trips Gov. McCrory took outside of the state that were documented on forms EP-25, The trips documented in the attached forms—which, again, are an example of trips and are not the full universe of trips documented on the forms during Gov. MeCrory's term—include both official travel and political travel outside the state. 'n light of the above, the explanation you offered yesterday for the lack of EP-25's on the two days in question here does not hold water. Additionally, the documents that have been provided by NCSHP show there was some travel within the State on the two days in question, which would suggest there should stil have been an EP-25 completed for that day. Accordingly, please either provide the forms EP-25 for the requested dates, provide alternate documents related to the Governor's travel that day or provide any records in which the Governor's Office or anyone else within the Cooper administration instructed there not be an EP-25 completed for the two days in question, Thanks- Nick From: Walker, Pamela Sent: Wednesday, August 07, 2019 6:01 PM. To: Ochsner, Nick ‘Subject: WBTV Aug. 1 record requestNick, Chris and Mike are both out of the office this week but we want to be responsive to your follow-up request to Chris Knox ‘on August 1. Attached please find the Policy Directive 1.07 regarding Executive Protection. As Chris noted in his prior response, there are no EP-25's for the January and June travel you requested. This is because the purpose of an EP-25 is for the Executive Protection Detail to coordinate the Governor's travel details with other members of the State Highway Patrol in the county of the scheduled event. Therefore, itis only generated when the governor travels outside of Wake ‘County but within the State of North Carolina. This has been a long-standing practice. Chris and Mike will be back next week and can determine if there any additional documents responsive to your request. Best, Pamela Walker DPS Communications Director Sent from my iPhone. Please excuse any typographical errors. E-mail correspondence sent to and from this address may be subject to the provisions of GS. 132-1, the North Carolina Public Records Law, and may be subject to monitoring and disclosed to third parties, including law enforcement personnel, by an authorized state official. Email comespondence to and tom this aderess may be subject to the North Carona Public Records Law and may be Thursday, October 31, 2019 2:32 PM Ochsner, Nick Baker, Michael D.; Walker, Pamela RE: Public Records Request PRRNCSHP _LTGovTravel pdf Nick, As you are aware, pursuant to NCGS § 132-1.7(a), "Public records, as defined in GS, 132-1, shall not include. plans, schedules, or other documents that include information regarding patterns or practices associated with executive protection and security.” Based upon legal advice, itis the State Highway Patrols position that this applies to the EP- 25As you have requested, As fo your request for any emails, text messages, instant messages, memo, directive or letter regarding a change in Policy for records kept related to the Lt. Governor's travel sent on or since August 1, 2019, no records were identified as. ‘esponsive to your request regarding this matter. As we have relayed previously, the practice of completing the EP-25 was changed under the previous administration in November 2014 to discontinue creating the form for out of state travel. When the Supervisor of the Executive Frotection Detail learned this summer thatthe Lt. Governor's Office Executive Protection Detail was continuing to create the EP-25A for out of state travel, he verbally relayed to the Detail that the practice had changed in 2014, ‘The EP-25A is no longer being created for the Lt. Governor's out-of-state travel and is rather completed for in state travel-- but outside of Wake County. Respectfully, Christopher D. Knox | Sergeant N. C. Department of Public Safety N.C. State Highway Patrol Public Information Office 4231 Mail Service Center Raleigh, N.C. 27699-4231 P, (984)349-6577 C.G36)312-0198 Christopher Knox@nedps. gov. Website: www.nedps.gov From: Ochsner, Nick [mailto:nochsner@wbtv. Sent: Tuesday, October 22, 2019 12:29 PM To: Knox, Christopher D. Baker, Michael D.; Walker, Pamela (Pamela. [email protected]) Subject: [External] RE: Public records request‘Sgt. Knox- Although | believe the broad language of my request submitted this past Friday makes this unnecessary, I'd like to revise my request to clarify that | am seeking all Forms EP-25A documenting the Lieutenant Governor's out of state travel for the requested time period. Thanks- Nick From: Ochsner, Nick Sent: Friday, October 18, 2019 3:46 PM To: Knox, Christopher D. Cc: Baker, Michael D. ; Walker, Pamela (Pamela Walker@ncdps gov) ‘Subject: Public records request Importance: High Set. Knox- Please see the attached records request. Please produce the information as promptly as possible, as required by the Public Records Act. Nick Nick Ochsner | Chief investigative Reporter [email protected] W: 704.374.3941 | C: 704.641.7538 NEWSROOM: 704.374.3691 SHWE Gaaee fo (i —wbtv.com i 6 i—CHWETY Colonel Glenn McNeill Via Email North Carolina State Highway Patrol 512 North Salisbury Street Raleigh, NC 27604 October 18, 2019 Re: Public records request Dear Col. McNeil: Under the North Carolina Public Records Act, G.S. §132, 1am requesting copies of the following public records: 1) Any Form EP-25 or other record documenting out of state travel of Lt. Governor Dan Forest ‘created by the North Carolina State Highway Patrol since March 1, 2019. 2) Any record of communication—including but not limited to emails, text messages, instant ‘messages, memo, directive, or letter—to any NCSHP personnel regarding a change in policy for records kept related to the Lt. Governor's travel sent on or since August 2, 2019, ‘The law, specifically G.S. 132-6(c), requires non-public information contained in an otherwise public document to redacted; the presence of non-public information does not exempt an entire document from disclosure. if you do redact any information or deny this request, in whole or in part, please cite ‘each specific exemption you feel justifies the refusal to release the information, If possible, please provide the requested records on a rolling bases, as they are available, in the most practical electronic format (by e-mail, thumb drive, CO, etc.) would like to request a waiver of all fees since the disclosure of the requested information is in the public interest and will contribute significantly to the public's understanding of an important topic in our community. This information is not being. sought for commercial purposes. in the event there will be fees associated with fulfilling my request, please notify me in advance. The law requires that you respond to and fulfill this request "as promptly as possible.” G.S. 132-6la). If you expect a significant delay in responding to and fulfilling this request, please provide me with a timeline of when | might expect the requested records. Thank you for considering my request. Sincerely, Nick Ochsner