Durham county attorney cites statutes protecting memo

Nov. 17, 2009

4:58 p.m.

Durham County Attorney Lowell Siler cited four laws today protecting a memo sent Friday from planning Director Steve Medlin to County Manager Mike Ruffin that details the status of a debated protest petition.

Siler responded to a request from the Indy for the document this afternoon, stating that four statutes related to confidential communications by legal counsel to a public board or agency, pending litigation and personnel privacy (specific citations listed on the jump) preclude the memo from being released to the public.

"We want to be open," Siler said by phone. "We have no desire to withhold any information that can be released, but we have a mandatory responsibility to exercise some privileges by law as it relates to the disclosure of information."

Siler said his department has been going through the "analysis" presented to Ruffin Friday and that he doesn't know if any portion of it can be released. He did say that commissioners could vote to release some of the information (see citation on jump).

"It looks like the whole thing is privileged," Siler said.

County commissioners are scheduled to meet in closed session at 10 a.m. Thursday, and it's unclear whether they could take any action in open session regarding the memo, or the debated protest petition.

The controversy surrounds the status of a protest petition filed in the October rezoning of the Jordan Lake watershed by two environmental groups. Had the petition been valid, it would have required at least a 4-1 vote in favor of the rezoning, instead of the simple majority of 3 votes to 2. But the county said the petition was invalid. The petitioners asked the county to revisit their verdict, even after commissioners voted to rezone the watershed.

In an announcement Nov. 5, Siler said that he maintained the planning department's ruling that the petition was invalid, and the problem was related to signatures. But the county continued to examine the petition, and protesters say they've heard Friday's memo from Medlin to Ruffin actually finds the petition is valid.

But, as stated above, Siler says the memo is protected and not open for public review. He cited these laws:

GS 132-1.1 : "Confidential communications by legal counsel to public board or agency ..."

This clause states that commissioners could decide to make the information public:

Such written communication and copies thereof shall not be open to public inspection, examination or copying unless specifically made public by the governmental body receiving such written communications;

GS 132-1.9 : "Trial preparation materials" - includes materials prepared in anticipation of legal proceeding, even if the proceeding has not commenced

GS 153A-98 : "Privacy of employee personnel records" - relating to county employees

GS 160A-168 : "Privacy of employee personnel records" - relating to city employees