State Employees Ass'n of North Carolina, Inc. v. North Carolina Department of State Treasurer

685 S.E.2d 516, 200 N.C. App. 722, 2009 N.C. App. LEXIS 1704
CourtCourt of Appeals of North Carolina
DecidedNovember 3, 2009
DocketCOA08-1326
StatusPublished
Cited by2 cases

This text of 685 S.E.2d 516 (State Employees Ass'n of North Carolina, Inc. v. North Carolina Department of State Treasurer) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Employees Ass'n of North Carolina, Inc. v. North Carolina Department of State Treasurer, 685 S.E.2d 516, 200 N.C. App. 722, 2009 N.C. App. LEXIS 1704 (N.C. Ct. App. 2009).

Opinions

BEASLEY, Judge.

Plaintiff appeals from an order dismissing Plaintiff’s complaint for failure to state a claim pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. For the reasons stated below, we affirm.

[723]*723Plaintiff is a nonprofit corporation incorporated in North Carolina, whose purposes include promoting the best interests and welfare of current, retired, and future employees of the State of North Carolina. On 1 February 2008, Plaintiff filed a complaint against North Carolina Department of State Treasurer (Defendant Department) and Richard H. Moore (Defendant Moore), Treasurer of the State of North Carolina (collectively Defendants). Under N.C. Gen. Stat. § 132-1 through 132-10, Plaintiff made a request for documents under public records law.

The complaint alleged that the 12 March 2007 issue of Forbes magazine published an article entitled “Pensions, Pols and Payola.” The article:

insinuat[ed] that the Defendant Moore had instituted a “pay for play” system over investment decisions as sole fiduciary for the $73 billion in the state retirement system, had initially failed to provide public record information about the identity and payments to individual investment fund managers hired or retained by his office, had hired a private law firm to handle Forbes’ inquiries, and only handed over those records after Forbes threatened him with a lawsuit.

Based on the information provided in the Forbes article, Plaintiffs Executive Director, on behalf of Plaintiff, wrote a letter to Defendant Moore on 1 March 2007. The letter requested the following information:

1. All documents from the Office of State Treasurer and the law firm retained regarding the dispute with Forbes over the magazine’s request for information and the documents provided to Forbes.
2. A complete accounting of how the law firm was paid and the total cost to taxpayers.
3. All investment reports that your office has been required during your tenure to file with the legislature under GS 147-69.3(h)-(i), any other investment reports that have been required to be publicly filed under state law and identification of such reports that have not been filed.
4. A list of all current investment managers, their performance by year (or total time if shorter than a year) and the total fee amounts being paid by your office.

[724]*724In response to the March 2007 letter, Defendant Moore met with Plaintiffs Board of Governors, delivered to them 700 pages of public documents, and gave a presentation on those documents and the status of the pension fund. Plaintiff believed that the documents provided by Defendant Moore were incomplete and did not fully satisfy the March 2007 letter’s request. On 16 October 2007, Plaintiff wrote a second letter to Defendant Moore. Plaintiff requested the following records, in addition to the records requested in the first letter:

1. All private equity, hedge fund or real estate investments made or maintained by the Treasurer’s Office on behalf of the state’s pension funds since January 1, 2001. Please provide records that show the following information for each year that the investment was maintained by the Treasurer’s Office:
a. Name of the fund or partnership
b. Name of the principals, fund managers and general partners
c. Date of the initial commitment, initial investment and any follow-[up] communications
d. Amount of capital committed and the actual amount of funds paid
e. Cash paid out
f. Remaining or estimated value
g. Internal rate of return
h. Investment multiple or return on capital
2. Records that show the fees paid to each external investment manager for the state’s pension funds, including brokers, private equity managers, hedge fund, managers and real estate investment managers since January 6, 2001. Please provide records that show the fees paid on an annual or monthly basis.
3. Records that show the fees paid to each broker, bank or other financial institution that manages or holds the investments, cash and/or deposits in the Cash Management Program from January 6, 2001, to the present. Please provide records that show the fees paid on an annual or monthly basis.
4. Records that show all stocks held each year by the state retirement system (including externally managed funds) administered by the State Treasurer from January 6, 2001, to the present.
[725]*7255. Records that show the identity of each person who has served on the State Treasurer’s investment committee since January 6, 2001. Please provide records that show the dates of service for each advisor, including any SEC investment advisor, registration forms or form ADV’s provided to or retrieved by the State Treasurer’s Office.

Plaintiff wrote a third letter to Defendant Moore on 6 December 2007, warning that if Defendant Moore did not supply the requested documents by 31 December 2007, Plaintiff would take “appropriate legal action to require your compliance with the Public Records Act.” After the 6 December 2007 letter, Plaintiff and Defendants exchanged six additional letters between 21 December 2007 and 24 January 2008. In a 21 December 2007 letter, Defendants communicated to Plaintiff that they believed their production of the more than 700 documents had fully satisfied Plaintiff’s 1 March 2007 request, and that if Plaintiff believed that there were “still outstanding documents from [their] requests”, it should provide Defendants with a list of specific information it desired.

In February 2008, Plaintiff filed a complaint alleging that Defendants had violated the North Carolina Public Records Act, set out in N.C. Gen. Stat. § 132-1 et seq. Plaintiff sought a declaratory judgment that the requested records be deemed public records under N.C. Gen. Stat. § 132-1 and an order requiring Defendants to produce the requested records to Plaintiff under N.C. Gen. Stat. § 132-9(a). In March 2008, Defendants filed an answer seeking dismissal of Plaintiff’s claims pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure for failure to state a claim upon which relief can be granted. In July 2008, the trial court entered an order granting Defendants’ motion to dismiss and dismissing Plaintiff’s complaint. From this order, Plaintiff appeals.

Plaintiff argues that the trial court erred in granting Defendants’ Rule 12(b)(6) motion to dismiss because Plaintiff’s complaint alleged all necessary elements to state a claim for production of records under the Public Records Act. For the reasons stated below, we disagree.

On appellate review, we must determine whether:

as a matter of law, the allegations of the complaint, treated as true, state a claim upon which relief can be granted. Dismissal under Rule 12(b)(6) is proper when one of the following three [726]

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685 S.E.2d 516, 200 N.C. App. 722, 2009 N.C. App. LEXIS 1704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-employees-assn-of-north-carolina-inc-v-north-carolina-department-ncctapp-2009.