Attorneys lay out arguments in evidence room audit lawsuit

Judge Bradley Letts listens to arguments in the evidence room audit lawsuit this morning. Photo by Max Cooper.

Attorneys for an alliance of local media (including Xpress), the city of Asheville and Buncombe County District Attorney Ron Moore laid out arguments before Judge Bradley Letts this morning over whether or not an audit of the Asheville Police Department evidence room should be released.

Attorney Charles Coble, representing Xpress, Carolina Public Press, The Asheville Citizen-Times, WLOS, and WCQS, contended that the evidence room audit is clearly a public record, and should be released. Local media filed the lawsuit in June after multiple open-records requests failed to obtain the documents.

The state’s open records law, Coble noted, “strongly favors transparency,” with agencies having to show a specific reason why something can’t be released.

According to Coble, that hasn’t happened. In their affidavits, Moore and auditor Mike Wright asserted that they didn’t have to release the audit. Coble counteredthat they didn’t cite a specific factual reason why the records couldn’t be made public, simply asserting that it couldn’t. “When you look at the facts before your honor, it’s clear that this document is a public record,” he said. “There aren’t facts here showing why this should be exempt. What we have instead is simply a declaration that the district ttorney believes the records are those of a criminal investigation. It’s a position that’s untenable under the statute.”

To not release the documents would set a disturbing precedent, allowing law enforcement agencies to simply hide anything that might at some point be used in an investigation, Coble continued. Instead, he said, the law only offers a narrow exemption allowing records to be withheld if it’s a criminal investigative record targeting a specific person or persons. Even if sections of the audit did implicate a specific person, those could be redacted, he added. Moore’s defense, he said, essentially amounted to a “because I say so” justification. Coble added that it was hard to believe that the entirety of the 15-volume audit report directly implicated someone in a criminal matter.

Attorney Anthony Fox, representing the city, countered that the meaning of the contract was clear, and the city couldn’t release a document it didn’t have.

While the audit contract called for the city to get a redacted copy of the audit from Moore when it was completed, Fox asserted that this condition is not fulfilled yet, so the city has no obligation to release the document. Some Asheville City Council members have indicated that they will formally ask for the audit’s release. City Attorney Bob Oast (who was present at the trial but did not speak) has requested the recommendations for evidence room reforms contained in the audit.

“It is not a public record yet,” Fox asserted. “If it does include criminal information, then it is not a public record. What the contract says is you will get that contract only after the DA makes that determination. At this time, he’s determined that the release of any portion could jeopardize criminal prosecutions.”

He also disagreed with Coble’s assertion that the evidence available from Wright’s public remarks indicated that the audit was primarily a list of items and recommendations.

Representing Moore, attorney (and retired judge) Ronald Payne argued that the release of the report is at the DA’s discretion, that “it wouldn’t take a rocket scientist” to use a record to implicate specific people, and that until the investigations proceed further, the district attorney can’t even begin to analyze the audit to figure out which parts need to be redacted.

He also said, “This is not a flip-through comic book,” Payne said. “The DA has other things to do besides edit something for the benefit of the press.”

Payne also focused a large portion of his argument on asserting that the original lawsuit hadn’t properly named Moore — targeting the “Buncombe County District Attorney’s Office” instead of formally designating Moore in his official capacity — and so should be dismissed immediately.

“There’s no such entity as ‘the Buncombe County District Attorney’s office,” he said. Coble countered that the lawsuit was delivered to Moore properly. Nonetheless, he did offer an amendment to formally name Moore in the lawsuit if Letts felt it necessary.

Responding to the other attorneys, Coble contended that their interpretation wasn’t in accordance with state law. He warned Letts that ruling in favor of Moore and the city would “blow up a sensible exception into a black hole where an agency can wait until it’s good and ready to even engage in analysis that the law requires.” With such an exception, he said, agencies’ default response is to “delay, delay, delay” unless the law forces disclosure.

In his closing arguments, Fox asserted that the language of the statute is clear, that “certain records shouldn’t be available” and the city doesn’t have to receive a copy of the audit yet.

“The contract doesn’t say the city can get a copy when it wants,” Fox said. “Blueline [Wright’s company] has said it won’t turn it over until the conditions are met.”

Fox asked that Letts require the city to get its attorneys fees reimbursed, “because the language of the contract is so clear.”

Payne asserted that Moore’s discretion on pursuing prosecutions is an essential part of his elected office, and returned to his point about the formal naming of Moore in the lawsuit being enough of a reason to dismiss.

Letts noted that he would take all the arguments into consideration and inform them when he has made a decision. Coble told Xpress that he expects a ruling within 30 days.