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The Greensboro Police Department has refused multiple public information requests for purchase records of the restraint device eight of its officers used to fatally hogtie Marcus Deon Smith during the 2018 North Carolina Folk Festival. An attorney and a law professor consulted by YES! Weekly have stated that this purchase record is a public document and the GPD has no right to withhold it.

On Dec. 11, responding to the re-opened public information request #9865, City of Greensboro public records requests administrator Kurt Brenneman relayed the following statement from the GPD:

The hobble devices which have been utilized by Greensboro Police officers were purchased from various manufacturers based on the time the devices were purchased, availability of the product, and price of product at time of procurement. Each device is nearly identical regardless of the manufacturer and each device works in exactly the same way. The products are shipped in packaging that does not contain manufacturer instructions. Any further information is not a public record pursuant to N. C. Gen. 132-1.4(a).

As previously reported, that paragraph is identical to the GPD’s first response to request #9865, which was opened on June 14 and closed by the GPD on July 3.

Shortly after receiving that negative response, YES! Weekly reached out to North Carolina press association attorney Amanda Martin, who stated, “I think you are entitled to the documents you have requested; I do NOT think purchase records are records of a criminal investigation.”

Having been advised by Martin, YES! Weekly emailed the following to public records administrator Brenneman on July 8.

“My initial response is that records documenting the purchase of equipment are not records of a criminal investigation. Even if they were, it is long established that purchase records do not become confidential just because they may have been used in a criminal investigation. Before I proceed with a formal appeal or other recourse, I request clarification on another possible interpretation of this response. Is the Police Department stating that they cannot identify the records pertaining to the purchase of that specific device?”

Two hours later, Brenneman replied: “Thank you for your email. I have re-opened your public records request #9865 and will find the answer to your question.”

There was no further communication until Oct. 15, when Brenneman wrote that the city “is still compiling the responsive records” and apologized for the delay. Then, on Dec. 11, 180 days after the request was first filed and 156 after it was reopened, Brenneman sent the GPD’s response, the first paragraph of which was identical to the italicized one above that ends with “Any further information is not a public record pursuant to N. C. Gen. 132-1.4(a).”

There was also a second paragraph, addressing, or rather, refusing to address, the requested clarification:

In response to your follow-up question. “Is the Police Department stating that they cannot identify the records pertaining to the purchase of that specific device?” the City of Greensboro Public Records (PIRT) Policy (attached) does not require the City to do research, analyze data, or answer written questions.

YES! Weekly was not the only party to request this information. On July 15, activist Hester Petty filed request #10039, stating “I would like to know the name of the manufacturer of the hobble device used by Officer R.R. Duncan on September 8, 2018.”

As previously reported, Robert R. Duncan is one of the eight officers named in the federal civil rights lawsuit against them, the City of Greensboro and Guilford County EMS for Marcus Smith’s death.

The report produced when PIRT#10039 is entered in the City’s public records request portal indicates that a GPD records search was “CLOSED WHILE IN PROGRESS” a day later, on July 16. However, the request was listed as open until Dec. 12, when Brenneman sent Petty the following response:

In response to your public records request #10039 concerning the name of the manufacturer of the hobble device used by Officer R.R. Duncan on September 8, 2018, the City of Greensboro denies access to the name of the manufacturer of the hobble device used by Officer R.R. Duncan on September 8, 2018, pursuant to NCGS 132-1.9, which says, “Except as otherwise provided in this section, a custodian may deny access to a public record that is also trial preparation material.”

When forwarded these statements yesterday, Brooks Fuller, director of the North Carolina Open Government Coalition and Assistant Professor of Journalism at Elon School of Law, sharply criticized the city and GPD’s refusal to release the requested information.

“I concur strongly with Amanda Martin’s assessment of your records request,” Fuller wrote. “The law enforcement records exemption only applies to records created ‘for the purpose of attempting to prevent or solve violations of the law.’ Purchase information does not qualify as a law enforcement record. It is possible that the records were destroyed, which could be either negligent or more seriously wrongful under North Carolina law if the records were destroyed prematurely.”

YES! Weekly also asked Fuller about the City’s response to Petty, specifically the statement that the request was denied “pursuant to NCGS 132-1.9, which says, ‘Except as otherwise provided in this section, a custodian may deny access to a public record that is also trial preparation material.’”

“I do not believe they can deny access to this information under this provision,” Fuller responded. “Trial preparation material includes records that are created for the purposes of preparing for trial, not records that may wind up being used as evidence in a trial. This is a misinterpretation of that provision of the public records law, in my opinion. Also, if they argue that the record is trial preparation material, the statute requires that they provide a written justification for that assertion. Merely classifying the record as trial preparation material is not enough.”

Indeed, § 132-1.9 (b) states: If the denial is based on an assertion that the public record is trial preparation material that was prepared in anticipation of a legal proceeding that has not commenced, the custodian shall, upon request, provide a written justification for the assertion that the public record was prepared in anticipation of a legal proceeding.

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