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STATE OF NORTH CAROLINA
WAKE COUNTY
CAPITOL BROADCASTING
COMPANY, INCORPORATED
DIBIA WRAL-TV; THE NEWS AND
OBSERVER PUBLISHING
COMPANY DIBIA THE NEWS &
OBSERVER; WSOC TELEVISION,
LLC; THE CHARLOTTE
OBSERVER PUBLISHING
COMPANY DIBIA THE
CHARLOTTE OBSERVER; WTVD
TELEVISION LLC; WUNC, LLC;
THE ASSOCIATED PRESS; and
THE WASHINGTON POST,
Plaintiffs,

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VERIFIED COMPLAINT,
PETITION FOR WRIT OF
MANDAMUS AND REQUEST FOR
MEDIATION PURSUANT TO N.C.
GEN. STAT. § 7A-38.3E

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v.

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DAMON CIRCOSTA, in his official
capacity as Chair of the North
Carolina State Board of Elections;
and GREG FLYNN, in his official
capacity as Chair of the Wake
County Board of Elections,

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Defendants.

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Pursuant to Rules 3, 7 and 8 of the North Carolina Rules of Civil Procedure
the plaintiffs, complaining of the defendants, allege and say the following:

Introduction
This action is pursuant to the North Carolina Public Records Law, contained
in Chapter 132 of the General Statutes. As described more specifically in the
numbered allegations set out below, plaintiffs seek:

 (1)

a preliminary order compelling defendants to appear and bring before

the court the records that are the subject matter of this action;
(2)

an order compelling the defendants to permit the inspection and

copying of public records pursuant to N.C. GEN. STAT.§ 132-9(a);
(3)

an order in the nature of a writ of mandamus requiring the defendants

to comply with the Public Records Law including, but not limited to, N.C. GEN.
STAT. §

132-6(a); and

(4)

an order, pursuant to N.C. GEN. STAT. § 132-9(c)(l), awarding plaintiffs

reasonable attorneys' fees, to be charged against the operating expenses of the
responsible agency or to be paid personally by any public employee or public official
found by the Court to have knowingly or intentionally committed, caused,
permitted, suborned, or participated in a violation of the Public Records Law.

The Plaintiffs
1.

Capitol Broadcasting Company, Incorporated ("WRAL") is a North

Carolina corporation whose principal place of business is located in Raleigh, Wake
County, North Carolina. Capitol Broadcasting is a diversified communications
company which, among other things, owns and operates five television stations in
North Carolina, including WRAL-TV in Raleigh which covers news in the Research
Triangle and surrounding areas of Piedmont and Eastern North Carolina, including
Wake County and its surrounds.
2.

The News and Observer Publishing Company ("N&O") is a North

Carolina corporation that maintains its principal place of business in Raleigh, Wake

2

 County, North Carolina. Among other things, the company publishes The News &

Observer, a general interest newspaper that is published in Wake County and
distributed throughout the surrounding area of North Carolina. The News &
Observer also publishes an online edition at
3.

~~=~=="-'°-"''-='-="'·

WSOC Television, LLC is a Delaware limited liability company that is

authorized by the North Carolina Secretary of State to do business within the state
and has its principal place of business in Atlanta, Georgia. WSOC-TV covers news
in Greater Charlotte and the surrounding areas of North Carolina and South
Carolina, and state-wide issues throughout North Carolina. WSOC-TV also
disseminates online coverage at~·"-·-'-"-~~~~===·
4.

The

Charlotte

Observer

Publishing

Company

(the

"Charlotte

Observer") is a Delaware corporation that maintains its principal place of business
in Mecklenburg County, North Carolina. Among other things, the company
publishes The Charlotte Observer, a general interest newspaper that is published in
Mecklenburg County and distributed throughout the surrounding areas of North
Carolina and South Carolina. The Observer also publishes news online at

5.

WTVD Television, LLC ("WTVD") is a Delaware corporation with its

principal place of business in Durham, North Carolina. It owns and operates the
television station WTVD ABC 11 in Raleigh-Durham, North Carolina. WTVD
gathers and disseminates news to the public, serving a twenty-three county viewing

3

 area in central and eastern North Carolina and disseminates its news coverage
online at ~-'-~~~'-"'·"·,==
6.

WUNC, LLC, is a North Carolina not-for-profit corporation located in

Orange County. WUNC operates North Carolina Public Radio, an affiliate of
National Public Radio, at 91.5 FM from Chapel Hill; at 88.9 FM from Manteo; at
91.9 from Fayetteville; at 91.1 from Welcome; and at 90.9 FM from Rocky Mount.
The station, which also streams online 24 hours a day, provides extensive national
and local news coverage, including information about courts throughout North
Carolina.
7.

The Washington Post (formally, WP Company LLC d/b/a The

Washington Post) is a news organization based in Washington, D.C. It publishes
and
produces a variety of digital and mobile news applications. The Post has won 4 7
Pulitzer Prizes for journalism, including awards in 2018 for national and
investigative reporting.
8.

The Associated Press ("AP") is a news cooperative organized under the

Not-for-Profit Corporation Law of New York, with more than 1,300 U.S. newspaper
members. The AP's members and subscribers include the nation's newspapers,
magazines, broadcasters, cable news services and Internet content providers. On
any given day, AP's content can reach more than half of the world's population. AP
has no parents, subsidiaries or affiliates that have any outstanding securities in the
hands of the public. The AP's North Carolina bureau regularly covers news of

4

 interest in all 100 counties of North Carolina, including news about state
government and public policy.
The Defendants
9.

Defendant Damon Circosta ("Mr. Circosta") is the Chair of the North

Carolina State Board of Elections ("SBOE") appointed by the Governor pursuant to
N.C. GEN. STAT. § 163-19(b) and is an agency of North Carolina government as
defined by N.C. GEN. STAT. § 132-l(a). Mr. Circosta is sued in his public capacity
and as the custodian of North Carolina State Board of Elections records that are
public pursuant to the Public Records Law.
10.

Defendant Greg Flynn ("Mr. Flynn") is the Chair of the Wake County

Board of Elections ("WCBOE") appointed by the North Carolina State Board of
Elections pursuant to N.C. GEN. STAT. § 163-30(a) and is an agency of North
Carolina government as defined by N.C. GEN. STAT. § 132-l(a). Mr. Flynn is sued in
his public capacity and as the custodian of Wake County Board of Elections records
that are public pursuant to the Public Records Law.
Jurisdiction, Venue and Conditions Precedent
11.

This Court has subject matter jurisdiction over the issues raised herein

pursuant to N.C. GEN. STAT.§ 132-9 and otherwise.
12.

This Court has personal jurisdiction over all the parties pursuant to

N.C. GEN. STAT.§ 1-75.4(1).
13.

Venue for this action is proper in the Superior Court of Wake County

pursuant to N.C. GEN. STAT.§§ 1-77 and 1-82.

5

 14.

The North Carolina General Assembly has waived sovereign immunity

for plaintiffs' claims by enactment of the North Carolina Public Records Law and
otherwise.
15.

Plaintiffs respectfully request mediation of this dispute pursuant to

N.C. GEN. STAT. § 7A-38.3E. Accord, Tillett v. Town of Kill Devil Hills, 89 S.E.2d
145 (2017).

North Carolina Law
16.

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

codified at N.C. GEN. STAT. §§ 132-1 through 132-10. The public policy underlying
the Public Records Law is set out in N.C. GEN. STAT. § 132-l(b), which provides:
The public records and public information compiled by the agencies of
North Carolina government or its subdivisions are the property of the
people. Therefore, it is the policy of this State that the people may
obtain copies of their public records and public information free or at
minimal cost unless otherwise specifically provided by law. As used
herein, 'minimal cost' shall mean the actual cost of reproducing the
public record or public information.
17.

The Public Records Law provides, in N.C. GEN. STAT. §132-l(a), that

public records are defined as:
all documents, papers, letters, maps, books, photographs, films, sound
recordings, magnetic or other tapes, electronic data-processing 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 supplied)
18.

The Public Records Law further provides that "Every custodian of

public records shall permit any record in the custodian's custody to be inspected and
6

 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." N.C. GEN. STAT. §132-6(a).
19.

Regarding responses by public records custodians to public records

requests, the Public Records Law also provides in N.C. Gen. Stat. §132-6.2(c), as
follows:
If the request is granted, the copies shall be provided as promptly as
reasonably possible. If the request is denied, the denial shall be
accompanied by an explanation of the basis for the denial. If asked to
do so, the person denying the request shall, as promptly as possible,
reduce the explanation for the denial to writing.

(Emphasis supplied)

History and Background
20.

On 3 May 2019, Josh Lawson, the then General Counsel for the SBOE,

sent an email to 32 county Boards of Election instructing them on how to gather
voting histories, signed poll books and redacted ballots dating back several election
cycles in response to subpoenas issued by the United States Attorney's Office for the
Eastern District of North Carolina in August 2018. A true and accurate copy of the
email is attached as Exhibit 1.
21.

On 10 May 2019, WRAL on behalf of itself, and later, the plaintiffs in

this matter, submitted a public records request to the WCBOE seeking the
information referenced in the SBOE 3 May 2019 email. A true and accurate copy of
the request is attached as Exhibit 2.
22.

In response, WCBOE's public affairs staff responded more than two

7

 weeks later that WCBOE was "prohibited under both federal and state law from
releasing any responsive information/documentation that may be in our possession."
The staff also declined to answer questions about which federal and state laws
prohibited them from releasing the information and referred questions to Wake
County Attorney Scott Warren ("Mr. Warren"). Mr. Warren did not return any of
the multiple messages left at his office. A true and accurate copy of the response is
attached as Exhibit 3.
23.

As directed, WRAL on behalf of itself and, later, the plaintiffs in this

matter, submitted their questions about the bases for the refusal to provide the
requested information to both the SBOE and the Attorney General's Office.
24.

On 13 June 2019, WRAL on behalf of itself, and later, the plaintiffs in

this matter, submitted a formal public records request to the SBOE and the other
31 county Boards of Election seeking the information referenced in the SBOE 3 May
2019. A true and accurate copy of the email is attached as Exhibit 4.
25.

At 8:13 p.m. on Sunday 23 June 2019, the Attorney General's

Communications Director sent an email to Tyler Dukes at WRAL stating, "Hi Tyler,
The State Board of Elections is prohibited from providing the records you requested.
As you know, there are multiple reasons why a records request might be denied,
including exceptions to the Public Records Act, provisions of federal law, court
orders, and sensitive public security information. I'm prohibited from providing a
reason in this matter. Thanks, Laura." A true and accurate copy of the email is
attached as Exhibit 5.

8

 26.

Defendants have not provided an explanation of the basis for their

denial of the Plaintiffs' request, and Plaintiffs have not been able to identify any
justification for the positions taken by Defendants or other similarly situated state
agencies.
27.

Upon information and belief, the defendant custodians have no

intention of voluntarily producing responsive documents to plaintiffs or providing a
lawful justification for not producing responsive documents.
28.

Upon information and belief, the defendant custodians are knowingly

and intentionally violating the Public Records Law.
WHEREFORE, plaintiffs respectfully pray the court:
I.

Accord this matter priority and set it down for an immediate hearing

pursuant to N.C.
2.

GEN. STAT.

§ 132-9(1);

Enter a preliminary order requiring the defendant (a) to bring the

requested records before the court for in camera review and (b) show cause, if any,
why the plaintiffs are not entitled to obtain the requested records;
3.

Enter an order declaring the requested records and information are

public records pursuant to the Public Records Law and requiring the defendants,
and all similarly situated county boards of election to provide plaintiffs with copies
of the same, access to same or otherwise provide the information made public by
statute;
4.

Enter an order awarding plaintiffs their reasonable attorney fees

pursuant to N.C.

GEN. STAT.

§ 132-9(c); and

9

 5.

Provide plaintiffs with such further and additional relief as the court

shall deem just, proper and authorized by law, and that the costs of this action be
taxed against the defendants.
Respectfully submitted this the

~y of September, 2019.

TEVENS MARTIN VAUGHN & TADYCH, PLLC

Michael J. Ta ch
N.C. State Bar No. 24556
Hugh Stevens
N.C. State Bar No. 4158
K. Matthew Vaughn
N.C. State Bar No. 20177
1101 Haynes Street, Suite 100
Raleigh, NC 27604
919.582.2300
866-593-7695 toll free facsimile

Attorneys for Plaintiffs

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 VERIFICATION OF COMPLAINT
The undersigned, Tyler Dukes, having been duly sworn, states that he is an
authorized representative of the plaintiffs in the above action, that he has read the
foregoing Verified Complaint and that the allegations of fact made therein are true
of his own knowledge, except as to the matters alleged upon information and belief,
which allegations he is informed and believes to be true.
Signature:

~~

Printed Name:
STATE OF NORTH CAROLINA

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COUNTY OF WAKE

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Sworn to and subscribed before me this the

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Notary Public
My Commission Expires:

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~y of September, 2019.

·

 Sent:
Cc:
Subject:

Lawson, Joshua
Friday, May 03, 2019 6:05 PM
SBOE_Grp - Legal; Strach, Kim
Instructions regarding search of local records

Importance:
Sensitivity:

High
Confidential

From:

To:

Beaufort, Bladen, Brunswick, Camden, Carteret, Craven, Cumberland, Currituck,
Duplin, Edgecombe, Franklin, Granville, Greene, Halifax, Harnett, Hertford,
Johnston, Lenoir, Martin, Nash, New Hanover, Pasquotank, Pender, Perquimans,
Pitt, Robeson, Sampson, Vance, Wake, Washington, Wayne, and Wilson County
Boards of Elections.

The State Board of Elections Office has continued its work to retrieve certain records
preserved under Numbered Memos 2019·01 and 2018·09. We have reached a point at
which the Office must require your County to retrieve select documents that may be
stored locally. Consistent with obligations under the above Numbered Memos, your
County must proceed as follows:
1.

Access Secure Fl'P. Open R:\FTP
SECURE\CountyUploads_SBE\2019\20190503 and select your County's folder.
Load the file using the encryption key sent via separate email.

2.

Demine whether a registrant voted. Use the VR Number or other data to confirm
whether the registrant has voted in an election held between January 1, 2013 and
August 30, 2018. (Ifnot, proceed to Step 4).

3.

If applicable. retrieve any signed poll book or traceable offiajA1 ballot. If a
registrant has voted, retrieve from storage any official ballot(s) and/or any signed
poll book page(s) associated with that registration.
(Note: The Office understands that certain records may no longer exist and that
only absentee ballots are traceable to a registrant).

4.

Check for other record.(s). Determine whether your County Board possesses any
additional records associated with the registrant that are not already contained
within SEIMS.

5.

Scan any record(s) collected. Once all documents have been collected, the county
must scan each document. Please note that any official ballot must be redacted to
cover all bubbles or other information revealing how a registrant voted.
(Note: It is possible that your County has no records for the registrant(s) identified
that are not already in SEIMS.)

6.

Upload 8.DY record(s), Access the Secure FTP and upload all records to your
County's folder within R:\FTP SECURE\CountyUploads_SBE\2019\20190503.

7.

Confirm Your search. is complete. Please reply to this email confirming that your
county has completed its search and any made any necessary upload.

The State Board Office is aware of numerous demands on your County's limited staff
resources. Thank you in advance for your efforts to retrieve any responsive record from
local storage.
We are advised by the Attorney Generafs Office that the County must avoid any
disclosure that could reveal the identity of the registrant(s) transmitted.
Sincerely,
Josh Lawson I General Counsel
o: 919·814·0?55 I f 919·715·01:35

EXHIBIT

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 WRAL request for voter data submitted to SBOE
Dukes, Tyler
Fri 5/10/2019 5:50 PM

To:'Gary Sims' <Gary.Sims@wakegov.com>;
Cc:'Dara Demi' <Dara.Demi@wakegov.com>;

Hey Gary,
Good talking with you today. Per our conversation, and pursuant to state public records law, I request access to and copies of
all digitized voter data - excluding any redacted "traceable official ballots" - submitted to the State Board of Elections in
response to the agency's May 3, 2019, guidance from General Counsel Joshua Lawson.
If your county has not yet submitted this information to the State Board of Elections, I'd ask that you please fulfill this
request after you have done so.
I'd like copies of these records in electronic format. If you are unable to provide the records in this format for any reason,
please let me know.
If applicable, please provide these records as they are processed.
It's the position of WRAL News that although Mr. Lawson said the state board was advised by the Attorney General's Office
that the county must avoid disclosures that would reveal the identity of the voters contained in this data, no state statute
exists that would exempt these data - which are inherently public whether or not they are subject to a subpoena -- from
required public disclosure under state law.
As such, if my request is denied in whole or part, I ask that you justify all deletions, redactions or denials by reference to
specific exemptions in the state open records act.
If you need any additional information to fulfill this request, please let me know.
Tyler Dukes
Reporter, WRAL News
919.821.8949
@mtdukes

EXHIBIT

I

~

 Request #19-502
0

CLOSED
As of September 27, 2019, 3:35pm
Request Visibility: Unpublished

Details
Hey Gary,
Good talking with you today. Per our conversation, and pursuant to state public records law, I
request access to and copies of all digitized voter data - excluding any redacted "traceable
official ballots" - submitted to the State Board of Elections in response to the agency's May 3,

2019, guidance from General Counsel Joshua Lawson.
If your county has not yet submitted this information to the State Board of Elections, I'd ask
that you please fulfill this request after you have done so.
I'd like copies of these records in electronic format. If you are unable to provide the records in
this format for any reason, please let me know.
If applicable, please provide these records as they are processed.
It's the position of WRAL News that although Mr. Lawson said the state board was advised by
the Attorney General's Office that the county must avoid disclosures that would reveal the
identity of the voters contained in this data, no state statute exists that would exempt these
data - which are inherently public whether or not they are subject to a subpoena -- from
required public disclosure under state law.
As such, if my request is denied in whole or part, I ask that you justify all deletions, redactions
or denials by reference to specific exemptions in the state open records act.
If you need any additional information to fulfill this request, please let me know.

-Read less

Received
May 10, 2019 via email

Departments
Board of Elections, Community Services

Requester
Tyler Dukes
II tdukes@wral.com

J

919-821-8949

;f1:l; WRAL

EXHIBIT

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 Documents
Public (pendingJO

(none)
Requester

(none)

Staff
Point of Contact

Gary Sims

Timeline
External Message

Requester + Staff

Hey Tyler,
Please contact the County Attorney's Office at 919-856-5500 to discuss further.
Thank you!
May 28, 2019, 10:18am by Alice Avery, Communication Specialist (Staff)

External Message

Requester+ Staff

Which state and federal laws prohibit the release of this information? My
understanding is that this voter registration information is public data.
May 28, 2019, 10:03am by the requester via email

Request Closed
Hi Tyler,
We're prohibited under both federal and state law from releasing any responsive
information/documentation that may be in our possession.
Thank you!
May 28, 2019, 10:01am

Public

 External Message

Requester + Staff

We have received your public records request and will begin processing it as soon as
possible. Please reply to this email if you have any questions.
Thank you,
Wake County Public Records

May 13, 2019, 8:18am

Department Assignment

Public

Board of Elections, Community Services, County Attorney's Office
May 13, 2019, 8:18am

Request Opened
Request received via email
May 13, 2019, 8:18am

Public

 Pat Pritchard
From:

Sent:
To:

Subject:

Dukes, Tyler <TDukes@wral.com>
Thursday, June 13, 2019 1:43 PM
Gannon, Patrick
WRAL request for voter registration data

Hey Pat,
It occurs to me I haven't made this request formally, so I just wanted to make sure you had it in your inbox.
Pursuant to state public records law, I request access to and copies of all digitized voter data - excluding any redacted
"traceable official ballots" - submitted to the State Board of Elections in response to the agency's May 3, 2019, guidance
from General Counsel Joshua Lawson.
I also request any and all documents transmitted to county boards of elections via FTP, as described in Lawson's May 3,

2019, memo.
I'd like copies of these records in electronic format. If you are unable to provide the records in this format for any
reason, please let me know.
If applicable, please provide these records as they are processed.
It's the position of WRAL News that although Mr. Lawson said the state board was advised by the Attorney General's
Office that counties must avoid disclosures that would reveal the identity of the voters contained in this data, no state
statute exists that would exempt these data - which are inherently public whether or not they are subject to a subpoena
-- from required public disclosure under state law.
As such, if my request is denied in whole or part, I ask that you justify all deletions, redactions or denials by reference to
specific exemptions in the state open records act.
If you need any additional information to fulfill this request, please let me know.

Tyler Dukes
Reporter, WRAL News

919.821.8949
@mtdukes

EXHIBIT

I
1

q

 Pat Pritchard
Brewer, Laura <lbrewer@ncdoj.gov>
Sunday, June 23, 2019 8:13 PM
Dukes, Tyler
following up

From:

Sent:
To:

Subject:

Hi Tyler,
The State Board of Elections is prohibited from providing the records you requested. As you know, there are multiple
reasons why a records request might be denied, including exceptions to the Public Records Act, provisions of federal
law, court orders, and sensitive public security information. I'm prohibited from providing a reason in this matter.
Thanks,
Laura

Laura Brewer
Communications Director
Attorney General Josh Stein
Phone: 919-716-6484
114 W. Edenton St., Raleigh, NC 27603
ncdoj.gov
Please note messages to or from this address may be public records.

EXHIBIT

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