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GCVOISU'S

STATE OF NORTH CAROLINA


WAKE COUNTY

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IN THE GENERAL COURT OF JUSTICE


SUPERIOR COURT DIVISION

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16 CVS

ZMINDY,INC. d/h/8i INDY Week,


Plaintiff,

:
COMPLAINT AND MOTION FOR
ORDER TO SHOW CAUSE

JOHN E. SKVARLA,III, as Secretary


of the North Carolina Department of
Commerce,

[COMP]

Defendant.

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

the plaintiff, complaining of the defendant John E. Skvarla as Secretary of the


North Carolina Department of Commerce, alleges and says:
Introduction

1.

This is an action pursuant to the North Carolina Public 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 Secretary Skvarla to permit

the inspection and copying of public 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 Carolina corporation

that has its principal place of business in Durham, Durham County, North

Carolina. Among other things, ZM INDY, Inc. pubhshes and does business as INDY
Week, a general interest weekly newspaper that covers news, pohtics and culture in
the Research Triangle area. INDY Week also disseminates news online via
www.indvweek.com.^

3.

John E. Skvarla, III ("Secretary Skvarla") is the duly appointed and

serving Secretary of the North Carolina Department of Commerce and is sued in

that official capacity. Secretary Skvarla is a public agency of North Carohna

government as defined by G.S. 132*1(a) and is the custodian of records that are
pubhc under the Public Records Law.
The North Carolina Public Records Law

4.

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

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

5.

The pubhc 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 free or at
minimal cost unless otherwise specificaUy provided by law. As used

herein, 'minimfll cost' shaU mean the actual cost of reproducing the
pubhc record or pubhc information.

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 coalition
of media'outlets and pubhc interest organizations are seeking rehef for the

systematic non-comphance with the North Carohna Pubhc Records Act by executive
branch agencies, including the Department of Commerce, 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-CVS9591.

6.

The Public Records Law, in G.S. 132-l(a), defines public

records as:

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
public business by any agency of North Carolina 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 26 April 2016 INDY Week, through its employee Paul Blest,

requested copies of records reflecting salaries and whatever other compensation for
the Industrial Commissions'commissioners, deputy commissioners, and

administrators from 1/1/13 to 4/25/2016 and Industrial Commission annual reports

from 2013, 2014, and 2015. True and accurate copies of those requests are attached
as Exhibit A.

9.

These requests were initially made to Emily Baucom, the Clerk of the

North Carolina Industrial Commission. Owing to the fact that the Department of

Commerce provides administrative oversight to the Industrial Commission, Ms.


Baucom responded to Mr. Blest that his requests had been forwarded to Kim
Genardo, the Pubhc Records Ofiicer for [the Department of] Commerce.

10.

On 28 April 2016, Beth A. Onyenwoke from the Department of

Commerce acknowledged the requests and copied Ms. Genardo, David Rhodes, the

Department of Commerce's Deputy Communications Director and Meredith


Henderson, an attorney with the North Carohna Industrial Commission with that
acknowledgment.

11.

Each of the records requested by INDY Week is a public record that

Secretary Skvarla was required by the Pubhc Records Law to provide to INDY
Week "as promptly as possible."

12.

At the time of this filing, it has been 189 days since INDY Week's

requests for Pubhc Records were made, 186 days since the requests were

acknowledged and no public records have been produced by Secretary Skvarla


responsive to any of the requests described above.

13.

Based on the plaintiffs experience with previous pubhc records

requests submitted to Secretary Skvarla and his staff at the NC Department of


Commerce,INDY Week beheves and alleges that Secretary Skvarla's failure to

respond to its Pubhc Records requests described above constitutes a purposeful,


knowing and rigid refusal by Secretary Skvarla, as part of the McCrory
Administration, to carry out the mandatory, non-discretionary and prescribed
duties of his office.

WHEREFORE,the plaintiff respectfully prays that the court:

1.
9(a);

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

2.

enter a preliminary order requiring Secretary Skvarla to:


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 pubhc records, either in whole or in part;

3.

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

requested by INDY Week are public records and compelling Secretary Skvarla,

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 Secretary Skvarla.
This the

day of November, 2016.

iTEVENS Martin Vaughn & Tadych,PLLC

Michael J. Tadych
N.C. State Bar No. 2451

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: Tuesday, April 26, 2016 3:25 PM


To: Baucom,Emily M

Subject: RE: Public records request - salaries of commissioners


Thanks Emily! Much appreciated.
Best,
Paul

From: Baucom,Emily M [emily.baucom@ic.nc.gov]


Sent: Tuesday, April 26,2016 3:14 PM
To: Paul Blest

Subject: RE: Public records request - salaries of commissioners


Mr. Blest,

Your request has been forwarded to Kim Genardo,Public Records Officer for Commerce.I'm sure she
will get back to you as soon as possible.
Thanks,

Emily Baucom

Original Message

From:Paul Blest rmailto:PBlefit@indvweek.coml


Sent: Tuesday, April 26,2016 li:49 AM
To: Baucom,Emily M <emilv.baucQm@ic.nc.gov>

Subject: Public records request - salaries of commissioners


Hi Emily,

My name is Paul Blest, I'm a reporter at Indy Week.I'm not sure if you're the person to talk to about
this but any help would be much appreciated.

1. I'd like to see the salaries + whatever otlier compensation for the Industrial Commissions'
EXHIBIT

commissioners, deputy commissioners,and administrators from 1/1/13 4/^5/^^l^lji^gj2jj^iJjjj^


4

a\

bave the pay structure outlined at this link Chttp://www.ic.nc.gov/ncic/pages/statute/Q7-78.htm') but


I'd like to know a hard number.

2. I'd like to see the annual reports from 2013, 2014,and 2015,requested by the G-S under this
section: "The Commission shall demonstrate its success in implementing its strategic plan under
subsection (f) ofthis section by including all of the following in its annual report under subsection (e)
ofthis section:

(1)The total number of claims made during the preceding calendar year,the total number of claims in
which compliance was not timely made,and,for each claim,the date the claim was filed,the date by
which compliance was required, the date of actual compliance, and any semctions or other remedial
action imposed by the Commission.

(2)The total number of requests for, and disputes involving, medical compensation under G.S. 97"
25 in which final disposition was not made within 75 days ofthe filing ofthe motion with the
Commission,and,for each such request or dispute, the date the motion or other initial pleading was

filed,the date on which final disposition was made and, where reasonably ascertainable,the date on
which any ordered medical treatment was actually provided.(1929? c. 120,s. 52; 1931? c. 274,s. 9J

1941, c. 358,s. 2; 1947, c. 823; 1957, c. 541,s. 6; 1971, c. 527,s. 1; c. 1147, s. 1; 1983, c. 717, s. 20;1983

(Reg. Sess., 1984),c. 1034? s. 164; 1997-443? s. 334;1998-212,s. 28.18(a); 2005-276,s. 29.20(b);
2007-323,ss. i3.<4A(a),(b); 2013-382,s. 9.1(c); 2013-413,s. 60(a); 2014-77,s. 5.)"
Let me know if you have any questions; my number is 302-743-9939.Thank you!
Best,
Paul

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: Onyenwoke, Beth [beth.onyenwoke@ic.nc.gov]


Sent: Thursday, April 28,2016 9:10 AM
To: Paul Blest

Co: Genardo, Kim S; Rhoades, David E; Henderson, Meredith

Subject: RE: Public records request - salaries of comniissioners


Good morning, Mr. Blest:

This email is to acknowledge the receipt of your public records request submitted below.

Additionally, I returned your phone call from late Tuesday on Wednesday morning but wanted to be
sure to follow up with you via email. The Industrial Commission is a dmsion of the North Carolina

Department of Commerce and we respond to questions from the media through their communication
team. Kim Genardo is the head of that team,and she is cc-ed here.

Please let us know if you are operating under a deadline for your story.
Thank you.

Beth A. Onyenwoke

E-mail correspondence to and from this address is subject to the North Carolina Public Records Law
and may be disclosed to third parties unless the content is exempt by statute or other regulation.

Original Message
From: Baucom,Emily M

Sent: Tuesday, April 26,201612:03 PM

To: Onyenwoke, Beth <beth.onvenwoke@ic.nc.gov>


Cc: Henderson, Meredith <Meredith.Henderson@ic.nc.gov>

Subject: FW:Public records request - salaries of commissioners

EXHIBIT

Original Message
From: Paul Blest fmailto:PBlest@indvweek.coml

Sent: Tuesday, April 26, 2016 11:49 AM


To: Baucom,Emily M <emilv.baucom@ie.nc.gov>
Subject: Public records request - salaries of commissioners
Hi Emily,

My name is Paul Blest, I'm a reporter at Indy Week.I'm not sure if you're the person to talk to about
this but any help would be much appreciated.

1. I'd like to see the salaries + whatever other compensation for the Industrial Commissions'

commissioners, deputy commissioners, and administrators from 1/1/13 to 4/25/2016.1 know they
have the pay structure outlined at this link fhttp://www.ic.nc.gov/ncic/pages/statute/Q7-78.htm) but
I'd like to know a hard number.

2. I'd like to see the annual reports from 2013, 2014, and 2015,requested by the G-S under this
section:"The Commission shall demonstrate its success in implementing its strategic plan under

subsection (f)ofthis section by including all of the following in its annual report under subsection (e)
ofthis section:

(1)The total number of claims made during the preceding calendar year,the total number of claims in
which compliance was not timely made,and,for each claim,the date the claim was filed,the date by
which compliance was required,the date of actual compliance, and any sanctions or other remedial
action imposed by the Commission.

(2)The total number of requests for, and disputes involving, medical compensation under G.S. 9725 in which final disposition was not made within 75 days ofthe filing ofthe motion with the
Commission,and,for each such request or dispute,the date the motion or other initial pleading was
filed, the date on which final disposition was made and, where reasonably ascertainable,the date on
w^hich any ordered medical treatment was actually provided.(1929? c. 120,s. 52; I93i> c. 274* s. 9J

1941, c. 358,s. 2; 1947, c. 823; 1957j c. 541,s. 6; 1971, c. 527,s. 1; c. 1147> s. i; 1983> c. 717,s. 20; 1983
(Reg. Sess., 1984),c. 1034,s. 164; i907-443.> s. 334; 1998-212,s. 28.18(a); 2005-276,s. 29.20(b);
2007-323,ss. i3.4A(a),(b); 2013-382,s. 9-i(c); 2013-413* s. 60(a); 2014-77* s. 5.)
Let me know if you have any questions; my number is 302-743-9939- Thank you!
Best,
Paul

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.

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.

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