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I6CV0I2986

STATE OF NORTH CAROLINAI_ i: IN THE GENERAL COURT OF JUSTICE


WAKE COUNTY

SUPERIOR COURT DIVISION

liilbca 18 p

16CVS

ZMINDY,INC. d/b/a INDY Week

Plaintiff,

1> .
COMPLAINT AND MOTION FOR
ORDER TO SHOW CAUSE

PAT McCRORY, as Governor of North

[COMP]

Carolina
Defendant.

Pursuant to Rules 3, 7 and 8 of the North Garohna Rules of Civil Procedure

the plaintiff, complaining of the defendant Pat McCrory, as Governor of North


Carolina, alleges and says:
Introduction

1.

This is an action pursuant to the North Carohna Pubhc Records Law,

Chapter 132 of the General Statutes and the Uniform Declaratory Judgment Act,
N.C. Gen. Stat. 1-254. As described more specifically in the numbered allegations
set out below, the plaintiff seeks an order compelling Governor McCrory to permit

the inspection and copying of pubhc records pursuant to N. C. Gen. Stat. 132-9(a)
and an order awarding the plaintiff its reasonable attorney fees pursuant to G.S.
132-9(c)(l).
The Parties

2.

Plaintiff ZM INDY, Inc.("INDY Week")is a North Carohna corporation

that has its principal place of business in Durham, Durham County, North
Carohna. Among other things, ZM INDY, Inc. publishes and does business as INDY

Week, a general interest weekly newspaper that covers news, politics and culture in
the Research Triangle area. INDY Week also disseminates news onhne via
www.indvweek.com

3.

Defendant Pat McCrory ("the Governor" or "Governor McCrory") is the

duly elected and serving governor of North Carolina and is sued in that official
capacity. Governor McCrory is a public agency of North Carolina government as

defined by G.S. 132-l(a) and is the custodian of records that are public under the
Pubhc Records Law,including the records at issue in this action.
The North Carolina Public Records Law

4.

The North Carolina Public Records Law ("the Public Records Law")is

codified at N.C. Gen. Stat. 132-1 through 132-10.

5.

The public policy underlying the Pubhc Records Law is set out in G.S.

132-l(b), which provides:

The pubhc records and pubhc information compiled by the agencies of


North Carolina government or its subdivisions are the property of the
people. Therefore, it is the pohcy of this State that the people may
obtain copies of their pubhc records and pubhc information fi:ee or at
minimal cost unless otherwise specifically provided by law. As used

herein, 'minimal cost' shah mean the actual cost of reproducing the
pubhc record or pubhc information.
6.

The Pubhc Records Law, in G.S. 132-l(a), defines pubhc

records as:

1 Plaintiff is also party to The News and Observer Publishing Company, et al, v. Pat
McCrory, as Governor of North Carolina, et al, 15-CVS-9591,in which a coahtion
of media outlets and pubhc interest organizations are seeking rehef for the

systematic non-comphance with the North Carolina Pubhc Records Act by executive
branch agencies and the Office of the Governor. Plaintiff, by bringing this current
action, does not in any way waive any of the arguments or claims for rehef sought in
15-CVS-9591.

all documents, papers, letters, maps, books, photographs, films,


sound recordings, magnetic or other tapes, electronic dataprocessing 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
pubhc business by any agency of North CaroHna government or its
subdivisions.(Emphasis added.)

7.

The Public Records Law further provides that "Every custodian of

pubhc 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." G.S. 132-6(a).
Background and History of the Public Records Requests at Issue
8.

On February 21, 2016 the Charlotte City Council amended the city's

nondiscrimination ordinance to extend protections for gay, lesbian, bisexual and

transgender persons. Among other things, the amended ordinance prohibited


businesses in the city fi:om discriminating against LGBT customers and allowed

transgender residents to use either a men's or women's bathroom, depending on the

gender with which they identified. The amended ordinance was to become effective
on April 1, 2016.

9.

At a Special Session held on March 23, 2016 the North Carolina

General Assembly passed House Bill 2("HB2"), entitled "AN ACT TO PROVIDE
FOR SINGLE-SEX MULTIPLE OCCUPANCY BATHROOM AND CHANGING
FACILITIES IN SCHOOLS AND PUBLIC AGENCIES AND TO CREATE
STATEWIDE CONSISTENCY IN REGULATION OF EMPLOYMENT AND

PUBLIC ACCOMMODATIONS." HB2 amended numerous provisions of several


3

chapters of the North Carohna General Statutes. Among other things, it superseded
and pre-empted the provisions of amended Charlotte ordinance that extended
protection to LGBT persons and prohibited North Carohna cities, towns and

counties from enacting ordinances extending similar protections to LGBT persons.


The defendant signed HB2 into law at 9:57 p.m. that same day. Although HB2
subsequently was enrolled as Chapter 3 of the 2016 North Carolina Session Laws, it
was and has continued to be commonly referred to as "HB2."
10.

On 28 March 2016 INDY Week, through its employee Paul Blest,

requested copies of all correspondence between March 23 and March 26 related to


the drafting of the governor's HB 2"Myths vs. Facts" press release. A true and
accurate copy of that request is attached as Exhibit A.

11.

On 25 April 2016,INDY Week, through its employee Paul Blest,

requested copies of aU emails from Governor McCrory and chief of staff Thomas
Stith between March 14 and March 25 related to the special session and/or HB 2, as

well as all emails between February 1 and March 25 from McCrory or Stith related
to the Charlotte ordinance. A true and accurate copy of that request is attached as
Exhibit B.

12.

On 9 May 2016,INDY Week, through its employee Paul Blest,

requested copies of aU correspondence between the Governor's staff and CNN, NBC,
MSNBC, Fox News, CBS, and ABC employees related to appearances and potential
appearances to discuss HB 2 between March 15 and May 9. A true and accurate
copy of that request is attached as Exhibit C.

13.

On 7 June 2016,INDY Week, through its employee Paul Blest,

requested copies of all communications between McCrory and his scheduler,

Meredith McCullen-Steadman. The same day, Mr. Blest requested copies of all
communications between the Governor or First Lady Ann McCrory and Ann

McCrory's former chief of staff. Heather Dickson, while Ms. Dickson was a state

employee. Those requests were acknowledged the following evening. A true and
accurate copy of those requests and acknowledgment are attached as Exhibit D,
14.

On 15 July 2016,INDY Week, through its employee Paul Blest,

requested copies of all communications associated with the cancellation of Progress


NC's Garden Party Against Hate at the Executive Mansion on July 13. A true and
accurate copy of that request is attached as Exhibit E.

15.

On 9 August 2016, INDY Week, through its employee Paul Blest,

requested copies of all communications and emails between Department of Health


and Human Services employees and the Governor's communications team between

August 1 and August 9. A true and accurate copy of that request is attached as
Exhibit F.

16.

Each of the emails and other communications requested by INDY

Week is a public record that Governor McCrory was required by the Public Records

Law to provide to INDY Week "as promptly as possible." All ofINDY Week's Pubhc
Records requests were made to Josh Ellis who serves as Governor McCrory's
Communications Director,

17.

At the time of this filing, it has been 204 days since INDY Week's

initial request for public records and 70 days since its most recent request and no

pubhc records have been produced by Governor McCrory responsive to any of the
requests described above. Moreover, Governor McCrory's office has only
acknowledged one of the Pubfic Records requests described above.
18.

On 12 October 2016,INDY Week published an article about its seven

Pubhc Records requests languishing before Governor McCrory and the Charlotte
Observer's suit against Governor McCrory seeking records about Governor

McCrory's HB2 communications. A true and accurate copy of that article is attached
as Exhibit G.INDY Week has had no response from Governor McCrory's office
since pubhcation of the article.

19.

Based on the plaintiffs experience with previous public records

requests submitted to Governor McCrory and his staff, INDY Week beheves and
alleges that Governor McCrory's failure to respond to its Public Records requests
described above constitutes a deliberate, conscious and intransigent refusal by

Governor McCrorj' to carry out the mandatory, non-discretionary and prescribed


duties of his office.

WHEREFORE,the plaintiff respectfully prays that the court:

1.

set this matter down for an immediate hearing pursuant to G.S. 132-

2.

enter a prehminary order requiring Governor McCrory to:

9(a);

a.

appear at the hearing;

b.

bring to the hearing for the court's in camera review the records
requested by the plaintiff; and

c.

show cause, if there is any, why any of the records requested by


INDY Week are not public records, either in whole or in part;

3.

after the hearing, enter a permanent order declaring that the records

requested by INDY Week are pubhc records and compelling Governor McCrory,

pursuant to G.S. 132-9(a), to make them available for inspection and copying; and
4.

enter an order awarding the plaintiff its reasonable attorney fees

pursuant to G.S. 132-9(c)(l).


5.

The plaintiff further prays that the court provide it with such further

and additional relief as the court shall deem to be just, proper and authorized by

law, and that the costs of this action be taxed against Governor McCrory.
This the

day of October, 2016.


Stevens Martin Vaughn & Tadych,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

866-593-7695 toll free facsimile

Attorneys for Plaintiff

From: Paul Blest

Sent: Monday, March 28,2016 4:13 PM


To:iosh.elIis@nc.gov

Subject: FOIA request - emails concerning the drafting of the Myths vs. Facts press release
Hey Josh, my name is Paul Blest, I'm a reporter at Indy Week. Have a few questions.
1. In the Myths vs. Facts press release you said this:
"11. Will this bill threaten federal funding for public schools under Title IX?

Answer: No,according to a federal court which has looked at a similar issue."


Wliat is the case/court yw're referring to?

2. I'd like to request all emails and correspondence that were involved in the drafting of the same
press release from 3/23/16 to 3/26/16.

My number is 302-743-9939 if you have any questions.


Thanks,
Paul

EXHIBIT

11

From: Paul Blest

Sent: Monday,April 25, 2016 12:52 PM


To: iosh.ellis@nc.gov

Subject: Public records request - emails before special session


Hi Josh,

I'd like to request a copy of all email correspondence between 3/14/16 and 3/25/16 of: Gov. McCroiy^
and Chief of Staff Thomas Stith, relating to the special session and^r HE 2, as well as all email

correspondence bet\veen 2/1/16 and 3/25/16 of: Gov. McCroiy^ and Stith relating to the Charlotte
ordinance.

My number is 302-743-9939,feel free to reach out if you have any questions. Thanks!
Best,
Paul

EXHIBIT

10

From: Paul Blest

Sent: Monday, May 09, 201612:29 AM


To: iosh.ellis@nc.gov

Subject: FOIA request - emails with networlcs


Hey Josh,

fni requesting all correspondence between the Governor's staff and CNN, NBC, MSNBC,Fox News,
CBS,and ABC employees relating to appearances and potential appearances to discuss HB 2 betw^een
March 15 and May 9 of this year.
Thanlvs,
Paul

EXHIBIT

Sent from my iPhone

Begin forwarded message:


From:"Ellis, Joshua N" <iosh.ellis@nc.gov>
Date: June 8,2016 at 5:56:28 PM EDT
To:Paul Blest <PBlest@indvweek.com>. Governor's Press Office <govpress@nc.gov>
Cc:"Wilson, Graham" <graham.wilson@nc.gov>

Subject: RE:Public records request - Govemor^s communication


Confirming receipt of yom* request.
Josh Ellis

Communications Director

Office of Governor Pat McCrory


919 814 2100
919 239 0725

office
mobile

iosh.ellis@nc.gov
1 E. Edenton St.
MSG 20301

Raleigh, NC 27699-0301

Email correspondence to and from this address is subject to the


North Carolina Public Records Law and may be disclosed to third parties.

Facebook Twitter YouTube


EXHIBIT

Original Message

From: Paul Blest[mailto:PBlest@indvweek.coml


Sent: Tuesday, Jime 07, 2016 3:09 PM
To: Governor's Press Office <govpress@jic.gov>

Cc: Ellis, Joshua N <iosh.ellis@Jic.gov>: Wilson, Graham <graham.wilson@nc.gov>


Subject: Public records request - Governor's communication

I'd like to request any and all conununications - emails, phone log records, IMs, and text
1

messages - between Governor McCrory and his scheduler Meredith McMullen-Steadman.

I'd also like to request any and all communications - emails, phone log records, IMs, and text
messages - between Governor McCrory and Heather Dickson while Dickson was a state

employee, as well as any and all commimications - emails, phone log records, IMs, and text
messages - between First Lady Ann McCrory and Heather Dickson while Dickson was a state
employee.
Best,
Paul Blest

Staff Writer - INDY Week

302-743-9939(c)

Email correspondence to and from this address may be subject to the North Carolina Public
Records Law and may be disclosed to third parties by an authorized state official.

From: Paul Blest

Sent: Friday, July 15, 2016 11:50 AM


To: iosh.ellis@nc.gov

Subject: Public records request - communications associated with garden paiiy^


Hi Josh, I'd like to request all communications - emails, texts, messages, or othenvise - associated
with the cancelation of Progress NC's garden party at the executive mansion on Wednesday.
Best,
Paul

EXHIBIT

From: Paul Blest

Sent: Tuesday, August 09, 2016 4:44 PM


To: iQsh.ellis@nc.gov

Cc: news@dhhs.nc.gov

Subject: Public records requests - emails between DFIHS and Governor's office
Hi Josh andDHHS,

I'm requesting all communications and emails bet\\^een DHHS and the Governor's communications
team from 8/1/2016 to 8/9/2016.
Best,
Paul Blest

EXHIBIT

1(yi4/2016

Here Are Seven INDY Public Records Requests That the Governor's Office Has Ignored|Triangulator
|
indy Week

News Triangulator

October 12, 2016

Here Are Seven INDY Public Records Requests

That the Governor's Office Has Ignored


By Paul Blest

Governor Pat McCrory

Onpublic
April records
5, shortlyrequest
after MBfor2emails
passed,sentTheorCharlotte
Observer filed a
received by Governor
McCrory or his staff that "included, but was not limited to, email
exchanges with legislators, administration officials, companies, and
Economic Development Partnership of North Carolina staff."
The paper never got those records: last week, it sued.
This isn't the first time Team McCrory has been accused to ignoring the

state's open-records law. Last year, the 'NDY, The Charlotte Observer, The
News & Observer, and other media outlets sued the McCrory administration,
alleging that state agencies failed to produce public documents in a timely
manneror at all.

But this latest case serves as yet another indication of the administration's
cavalier disregard for transparency. Instead of answering records requests,
McCrory's minions often choose to ignore them until threatened with legal
action.

We know that all too well. One example: on April 25, the INDY sent a records

request to both McCrory and Lieutenant Governor Dan Forest, asking for
communications related to MB 2. Forest supplied his emails in June.

McCrory? We're still waiting. And those aren't the only records the gov's
office would rather keep hidden from public view.

Here is a list of our pending, unanswered public records requests, all of


which we are entitled to by law.

March 28, 2016: All correspondence between March 23 and March 26


related to the drafting of the governor's HB 2 "Myths vs. Facts" press release.

April 25, 201 6: All emails from Governor McCrory and chief of staff Thomas
Stith between March 14 and March 25 related to the special session and/or

HB 2, as well as all emails between February 1 and March 25 from McCrory


or Stith related to the Charlotte ordinance.

httpy/www.indywe^.com/indyweek/here-ar&-seven-indy-publlc-records-requests-that-the-governors-office-has-ignored/Content?oicl=5074901

/2016

Here Are Seven INDY Public Records Requests That the Governor's Office Has Ignored ] Triangulator i Indy Week

May 9, 201 6: All correspondence between the governor's staff and CNN,
NBC, MSNBC, Fox News, CBS, and ABC employees related to appearances and
potential appearances to discuss HB 2 between March 15 and May 9.
June 7, 201 6: All communications between McCrory and his scheduler,
Meredith McCullen-Steadman.

June 7, 201 6: All communications between McCrory or First Lady Ann


McCrory and Ann McCrory's former chief of staff, Heather Dickson, while
Dickson was a state employee.

July 15, 2016: AN communications associated with the cancellation of


Progress NC's Garden Party Against Hate at the Executive Mansion on July
13.

August 9, 2016: All communications and emails between Department of


Health and Human Services employees and the governor's communications
team between August 1 and August 9.

We'll update this list periodically, if and when new requests are made or if
old requests are answered, if past is prologue, most of these will probably
be ignored in perpetuityat least without another lawsuit. Or maybe a new
administration.

triangulator@indyweek.com

All News

Tags: Triangulator, Pat McCrory, Charlotte Observer, HB 2, records request, ignored, news and
record, public records

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