I STATE OF NORTH CAROLINA - IN THE GENERAL COURT OF JUSTICE - SUPERIOR COURT DIVISION COUNTY OF BUNCOMBE 12 CVS TI--IE INSTITUTE FOR SOUTHERN STUDIES, INC. d/b/a CAROLINA PUBLIC GANNETT PACIFIC CORPORATION d/b/a ASHEVILLE GREEN LINE MEDIA, INC. d/b/a MOUNTAIN WESTERN NORTH CAROLINA PUBLIC VERMED AND TV APPLICATION FOR ORDER . . .. COMPELLING DISCLOSURE OF Plaintiffs, PUBLIC RECORDS . v. . CITY OF ASHEVILLE and BUNCOMBE COUNTY DISTRICT OFFICE, . . Defendants. Plaintiffs, complaining of the acts of the Defendants, allege and state that: - l. Plaintiff The Institute for Southem Studies, Inc. d/b/a Carolina Public Press ("Carolina Public Press") is a nonprofit corporation organized and existing under and by virtue of the laws of the State of Georgia, with headquarters in Durham, North Carolina. Among other things, the ISS sponsors a nonprofit lmedia project known as "Caro1ina Public Press," which is engaged in in~depth, investigative, and independent reporting on matters of public interest in the 17 westernmost counties of North Carolina, including in Buncombe County, and publishes news reports online at 2. Plaintiff Gannett Pacific Corporation d/b/a the Asheville Citizen--Times (the which is registered to do business- in North Carolina, publishes the Asheville . I Citizen--Times, a daily newspaper of general circulation in Buncombe County and the sturounding area. The newspaper also operates a website at 3.- Plaintiff Green Line Media, Inc. d/b/a Mountain Xpress ("Mountain Xpress") is a corporation organized and existing under and by virtue of the laws of the State of North Carolina. Among other things, Mountain Xpress publishes and does business in Buncombe County and the surrounding area as Mountain Xpress, a weekly newspaper of general circulationPlaintiff Western North Carolina Public Radio, Inc., licensee and operator of the 2 radio station WCQS is a nonprofit corporation organized and existing under and by virtue of the laws of the- State of North Carolina. Among other things, WCQS does business in Buncombe County and the surrounding area as WCQS and a public radio station located in Asheville, North Carolina and serving the Greenville-Spartanburg, South Carolina l` - TSA. 5. Plaintiff Sinclair Commtmications, LLC, which owns television broadcast station WLOS--TV is a limited liability company organized and existing under and by virtue of the laws of the State of Maryland. Among other things, WLOS-TV does business in Buncombe County and the surrounding area as WLOS--TV and on a television station located in Asheville, North Carolina and serving the Asheville, North Carolina DMA. 6. Defendant City of Asheville (the "City") is an agency of North Carolina government within the meaning of North Carolina's Public Records Act, N.C. Gen. Stat. 132- 1, net seq. (the "Public Records Act"), and/or is otherwise subject to the requirements of the Public Records Act. 7. Defendant Buncombe County District Attomey's Office (the "District Attomey's is an- agency of North Carolina govemment within the meaning of the Public Records Act, and/or that is otherwise subject to the requirements of the Public Records Act. 8. I Ronald L. Moore ("Moore") is the District Attorney for Buncombe County and is - the custodian of records for the District Attorney's Office. 9. This is an action- brought pursuant to the Public Records Act. The General Assembly expressed the policy behind and purposes of the Public Records Act as follows: "public records and public infonnation 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 i people may obtain copies of their public records and public information free or at minimal cost i unless otherwise specifically provided by law." N.C. GEN. STAT. 132-'l . 10. Section 132-6 of the Public Records Act requires that "[e]very custodian of public 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 as possible, furnish copies thereof upon payment of any fees as may be prescribed by 1aw." N.C. GEN. STAT. 132-6. 1. Section 132-9 ofthe Public Records Act provides: Any person who is denied access to public records for purposes of inspection and examination, or who is denied copies of public records, may apply to the appropriate division of the General Court of Justice for an order compelling disclosure or copying, and the court shall have jurisdiction to issue such orders. Actions brought pursuant to this section shall be set down for immediate hearing, and subsequent proceedings in such actions shall be accorded priority by the trial and appellate cotuts. I N.C. GEN. STAT. 132-9. 12. This Court has jurisdiction over the parties, and venue is proper in this Court. 3 13. This dispute concerns certain documents created asa result of the disappearance of a substantial number of items, including drugs, prescription medication, weapons, and money from the evidence room maintained by the Asheville Police Department. 14. The disappearance of items from the Asheville Police Department's evidence - room was nfirst discussed publicly in early 2011. The issue represents a matter of substantial public importance because it involves not only the conduct and procedures of the Asheville Police Department, but also impacts the integrity of the cases investigated by the police 15. Upon information and belief, drug charges were dropped against at least one person as a result of missing evidence, and unsecured bonds were obtained against at least four persons charged with violent crimes as a result of uncertainty over the existence of evidence sufficient to prosecute these persons. I 16. In the wake of this public controversy, the Asheville City Council voted on April 12, 2011 to commission a forensic inventory of the evidence room with a private firm, Blueline Systems and Services ("Blueline"). The City ultimately entered into a written contract with Blueline, a copy of which is attached hereto. as Exhibit A. The contract specifically I provides that the City is to receive a" copy of Blueline's audit report, with any portions that would impair or impede any pending investigation redacted. 17. Blueline's audit began on or about May 30,2011, and it took approximately five months to complete. When Blueline finished its work in October 2011, it invoiced the City $174,723 for its services. - 18. Sometime thereafter, but by January 9, 2012, at the latest, Blueline submitted its audit report. Upon information and belief, the report was received by Moore and possibly others. 4 2 At the very least, a number of officials with the City and the Asheville Police Department, including the current police chief, were and have been briefed about the contents of the report. 19. Upon inf`ormation and belief, Blueline's audit report is a multivolume document that includes raw data cataloguing the items that were, or should have been, in the evidence room, as well as charts, tables, and attachments that surmnarize those data. 20. Starting in January 2012, Plaintiffs submitted a series of public records requests to the City, the Asheville Police Department, and/or the District Attomey's Ofiice (through Moore), seeking disclosure of the audit report prepared by Blueline. These requests include: . a. A January 20, 2012, request submitted by Mountain Xpress to Moore, attached hereto as Exhibit B. b. A March 23, 2012, request submitted by Mountain Xpress to Moore, . attached hereto as Ex11ibit C. c. An April 19, 2012, request submitted by Citizen--Times to Moore, attached hereto as Exhibit D. d. `An April 23, 2012, request submitted by WLOS-TV to Moore and the City, attached hereto as Exhibit E. c. An April 24, 2012, request submitted_ by Carolina Public Press to Moore, attached hereto as Exhibit 2012, request submitted by Carolina Public Press to the Asheville Police Department, attached hereto Exhibit G. g. A May 1, 2012, request submitted by Carolina Public Press to Moore, attached hereto as Exhibit H. 21. The District Attomey's Office (through Moore) provided no response at all to the first two above-detailed requests, and the subsequent requests were denied by Defendants. Moore contended that the entire audit report is exempt from disclosure pursuant to Section 132- 1.4 of the Public Records Act. The City has contended that it does not have access to the audit report, despite the clear language of the City's contract with Blueline that entitles the City to a copy of the report (with redactions if necessary to protect any pending investigation). I 22. A number of oficials with the City and the Asheville Police Department have 2 been briefed on the contents of the report. In addition, criminal defense attomeys have been briefed on the contents of the audit report, and one defense attomey in particular, Lee Arm Melton, was provided a copy of the audit report. 23. Nevertheless, Defendants have failed and refused, and continue to fail and refuse, to provide Plaintiffs with access to the audit report. 24. Defendants' failure to release the audit report documents on the grounds that they constitute "records of criminal investigations" is not supported by the plain language of the statute. "Records of criminal investigations" are limited to those records that "pertain[] to a person or group of persons that [are] compiled- by public law enforcement agencies for the purpose of attempting to prevent or solve violations of the law N.C. GEN. STAT. 132- . 25. A catalogue of the items in the evidence room, specifying which items have gone missing, does not "pertain[] to a person or group of persons" and therefore does not meet the deinition of "records of criminal investigations" set out in the statute. 26. In addition, the evidence room audit was commissioned and contracted for by the . City, which is not a public law enforcement agency. This further places the evidence room audit report beyond the scope of the exception set out in Section 132-1.4. 27. Furthermore, Section expressly provides that 'T[n]othing in this section shall be construed as authorizing any public law enforcement agency to prohibit or prevent another public agency having custody of a public record fi?om pennitting the inspection, examination, or copying of such public record in compliance with G.S. 132-6. The use of a public recordin connection with a criminal investigation or the gathering of criminal intelligence shall not affect its status as a public record." . 28. Thus, neither the District Attomey's Office nor any other law enforcement agency may limit the City's access to or disclosure of a publicrecord. Even more significantly, the fact that the District Attomey's Office or other law enforcement may be using a public record in connection with an investigation--here the evidence room audit--does not alter the audit - report's character as a public record. - 29. The City is specifically entitled to receive a copy of the audit report under its contract with Blueline. Thus, the audit report is within the custody and control of the City (even if not in the physical possession of the City) because it is in the possession of its contractor and the city has contracted to receive a copy. However, rather than secure its copy, the City and Asheville Police Department officials have instead been briefed on its contents. Whether by I design to avoid coming into possession of the report or at the behest of Moore, such conduct does not alter the audit report's character as a public record. 30. Moreover, to theextent there may be any limited infomration in the audit report that would fall within the definition of "records of criminal investigations" and that, if disclosed, would compromise any on-going investigation, Defendants are obligated to redact any such 2 information and disclose the remaining portions of the report. Section 132-6(c) provides: "No request to inspect, examine, or obtain copies of public records shall be denied on the grounds that confidential information is comnringled with the requested nonconiiderrtial information." This is consistent with the language of the City's contract with Blueline, which allows for redaction of the copy provided to the City if necessary to protect the integrity of an investigation. However, the City also has apparently made no effort to secure `a redacted version of audit report. 31. Finally, even if the entire audit report is deemed to fall within the of "records of criminal investigations," a court still may order its disclosure. N.C. GEN. STAT. . 32. Defendarrts' refusal to disclose the public records sought by Plaintiffs, including the conduct of the City designed to avoid coming into actual physical possession of the report or the efforts to Moore to restrict the ability of the City to make public records - available for inspection, is directly contrary to the language chosen by and the intent of the General Assembly in enacting the Public Records Act. Defendants' actions frustrate the purpose. of the Public Records Act, which is that "public records and public information compiled by the agencies of North Carolina govermnent or its subdivisions are the property ofthe people." 33. The actions of Defendants as set forth herein violate the Public Records Act. 34. Pursuant to Section 132-9, this Court is authorized to compel the disclosure of public records and public information and, in particular, to compel the release of the evidence room audit report, along with any attaclmrents or exhibits thereto, prepared by Blueline pursuant to its contract with the City. Plaintiffs are entitled to such relief through an order compelling Defendant to disclose the audit report and, to the extent the City does not have the report in its physical possession, through an order compelling the City first to secure from its contractor the copy of the report it is entitled to under to its contract and then disclose the report. 2 35. As a result of Defer1dants' violation of the Public Records Act, Plaintiffs' and the public's understanding of the people's business has been and is being impaired. 36. The information sought by Plaintiffs is essential to the maintaining of the- public's A i understanding of and confidence in the worlc of law enforcement officials supervised by - Defendants. 37. Plaintiffs and the public will suffer irreparable injury through further impairment - of their knowledge and understanding of the people's business as alleged herein, unless Defendants are enjoined from continuing and recurring violations of the Public Records Act. 38. In addition, an actual controversy of a justiciable nature presently exists between Plaintiffs on the one hand, and Defendants on the other, concerning the proper construction of the Public Records Act. The controversy is sufficiently immediate to justify the issuance of a declaratory judgment pursuant to the Declaratory ludgment Act. I 39. The issuance of declaratory relief by this Court will temrinate some or all of the existing controversy between the parties. 40. Plaintiffs request that the Court declare that the Public Records Act requires the release of the evidence room audit report, along with any attachments or exhibits thereto, prepared by Blueline pursuant to its contract the City. 41. Pursuant to Section Plaintiffs are entitled to recover their reasonable attomeys' fees from Defendants. WHEREPORE, Plaintiffs pray the Court that: 1. This action be treated as apetition for extraordinary injunctive relief, in the nature of a writ of mandamus, pursuant to Section 132-9; - 2. This action, being in the nature of a petition for extraordinary injunctive relief} be accorded priority pursuant to Section 132-9 and set for immediate hearing before a presiding Superior Court Judge; 3. The Court issue an order requiring Defendants to appear before this Court and show cause, if any there be, why they should not be compelled to make available for public . inspection and copying the public records and public information described herein; i 4. Plaintiffs recover judgment against Defendants declaring that the records referenced herein are public records subject to disclosure under the Public Records Act; 5. The Court issue a permanent injunction compelling Defendants to release the records sought by Plaintiffs in this action, including the evidence room audit report, along with any attachments or exhibits thereto, prepared by Blueline pursuant to its contract with the City; i 6. They recover their reasonable attorneys' fees and costs incurred in seeking the requested relief; and 7. They recover any further relief that the Court deems appropriate. 10 . This the 22th day of Jtme, 2012. Charles E. Coble i N.C. State Bar N0. 25342 . Eric M. David . N.C. State Bar N0. 38118 BROOKS, PIERCE, MCLENDON, . HUNIPHREY LEONARD Post Office Box 1800 . Raleigh, NC 27602 . . Telephone: (919)-839-0300 Facsimile: (919) 839-0304 Attorney for STATE OF NORTH CAROLINA BUNCOME COUNTY - VERIFICATION Angie Newsome, being fully sworn upon his oath, deposes and says: - 1. I am the Director and Editor of the Carolina Public Press, a Plaintiff in the foregoing Complaint, and I am familiar with the matters alleged therein and am authorized to make this verification . 2. The allegations in the foregoing Complaint are true and accurate to the best of my knowledge, except for those allegations stated upon information and belief; and as to those I allegations, I believe them to be true. a This the lj, day of June, 2012. . Angie A A- Q-, STATE OF NORTH CAROLINA ~?f?ry punk 5 COUNTY OF BUNCOMBE E"?"ooS 2 4 Ola gg . Signed and sworn to (or before me this day by ewsome, Date: 6 Signature Notary Pu 'c (Official Seal) Lame Fw Printed Name of Notary Public My Commission Expires: g' Z0 3 A 'Il I I Contract Signature Page 220oQ I20 RVN I Tm I Contract fl QHQO EQ ,3 OIL PN %n1(C) I I Connell Reeolutlon ll (lf applleablel I INWITNESS WHEREOF, each party has caused this agreement to be executed by ltle duly authorized ottlolal ae ofthe day and year The Department Director by Approval conveyethat thle eontraet has been revl and ted for approval bythe City of I I Azlf I epartment rector I This Instrument has been preeaucllted In the manner required by the Looat I Gove?rnmentB'udget and Flsoel control Aot. I uma lg -et Flnanclal Offloer I Glty Nlenagerto elgnati1re,If.requ1red I Attost to:. CI OF ASHE LLE x; A i.rL.l 'lu I AT `-iff - Olty I rk - t' Ma agor I (Corporate Seal) I OF NORTH CAROLINA. COUNTY l, Notary of the county and State atoroeald, that I - . hereenally came before me this day and aolgnow ged that shejle the ty Clerk ofthe Glty ot a corporation. and that by authorlty duly glven and aa the act foregolng lnetnlment I was slgnetl In Ite name by Its Glty Manager and herself ae Ita Glty Clerk. Witness my hand and thle 7 day or 20 I I notary ramro . I Printed Name: "nrem EJ vn DMWH- rr I My Explrea: a Remove thle Statement and Insert one et the foilowlhg etgnature _paragrephe.plue notary - thle- Contract Signature the type of you are oontraotlng ONLY ONE OFTHE FOLLOWING SIGNATURE STATEMENTS ON THIS-OONTRAOT AGREEMENT FORNII 5 or Partnership 5 or . corporation or - 6 Revised 3i22l11 I I EXHIBIT I I STATE OF NORTH CAROLINA SERVICE CONTRACT COUNTYOF BUNCOIVIBE NUMBER I THIS SERVICES CONTRACT, (hereinafter referred. to as the "Agreement") made and entered- Into this 5] day of May 2011, by and between the City a I corporation organized and existing under the= laws- of the State of North - Carolina: (hereinafter referred to as Blueline Systems 8; Servtces LLC, hereinafter referred to as Upon the terms- and conditions hereinafter-set forth, the- City has requested and Contractor has agreedjto fumish the City- with services as set forth In this contract. The- Clty-and Contractor agree as follows; I A.. TERMS-AND CONDITIONS: I 1. Contractor shalt provlde the- City with services (nerelrr "the Services") consisting of_the following? conduct: a forensic Inventory of the Asheville Police- Department evidence room and. prepare a final report of theresults i upon completion of said inventory. See Schedule for scope of work, I Schedule for addition duties of the City, and S?h?dUi& for I - procedure, attached and Incorporated- herelrr by reference. 2. The term. of this Agreement shall begin on the day- first-written above and I i continue: until the work- ls completed, as- set forth In- Schedule and . subject tor earlier termination as provided rn this Agreement. The term- - of the AQfEURement? may be extendedi upon- written agreement by both parties.- 3. The Clty- will compensate the Contractor In an amount not to exceed $175,000.00. `If' the contract exceeds the aforementionedthreshold, the City- must amend or renew the contract In accordance with all applicable City- policiest 4. The Contractor shall bill the City $85.00 per ho_ur for each hour expended by employees who are examiners. and $20.00 per hour for each hour expended by employees: who are evidence locatore or Scribes in performing the terms and conditions of the Agreement, The Contractor a shall the-- City an hour each hour expended for . Contractors representative to. attend any meeting with the City, the District . Attorneys Office of the udlclal (herein Attorney") or the Buncornbe County lT Department in performing-_ the terms and conditions of the-Agreement. The- Contractor shall provide- a timekeeping record of all hours worked and description of the duties performed during the hours worked. 5. The-- Contractor shall be- reim_bursed,_ ln addition to thecompensatlon referred to in Paragraphs 3 and 4 above, for all reasonable and necessary expenses incurred by the Contractor in connection with- performance of I 1 this Agreement, including eqtripmertt necessary to- protect the integrity of the inventory or safety ofthe persons conducting such inventory. The City I may provide such materials and supplles- directly to the Contractor. During . the performance of this Agreement, lt may he necessary for Contractor to . seek assistance ofthe Buncombe County IT Department and Contractor will not be responsible for- any fees or expenses incurred for such - assistance. 6. All timesheets and invoices. and receipts for reimbursement shall be submitted to Captain Tim- Splaln, Commander or designee for review and payment. of services. These time sheets, invoices, and receipts- for reimbursement shall be submitted on a weekly basis (every Monday) after Contractor undertakes and begins- work on said inventory. The- Clly shall pay all invoices and receipts for reimbursement within seven days of submittal. lf-any Invoice- or receipt for reimbursement remains unpaid for ten. (10) days after Its submission to the City;. Contractor may terminate Agreement without further liability to the City; The City shall pay any unpaid lrtvolces for any work completed pursuant to-the performance of this Agreement-. 7. In the- event that an employee of Contractor ls subpoenaed to courtby the- District Attorney or- any attorney-, to testify ln any matter related to the- i performance of this- Agreement, ?the.City agrees to reimburse that person . for all reasonable expenses- incurred in connection with with sald subpoena, Including reasonable hourly compensation for '-travel, I pwparatlon and testimony (either in. court; deposition or any administrative proceeding) at an hourly rate to be agreed upon between the city and- contractor. ln theevent the parties do not agree- upon said rate, than such rate shall be established by the resident $uperlor Court Judge of such . District upon petition by either party.- lf such employee- has been appointed as an expert witness by an order ofthe Court so that an expert witness fee i . can beawardecl by the Court, then this paragraph- shall _not apply. Payments. pursuant to this subsection may not exceed $50,000.00 per I year without appropriate Council authority. Contractor shall provide the City Attorneys Office a copy of the subpoena 24 hours of receipt of the samer . 8. Contractor shall be considered an Independent contractor and not as an employee of the -City? ln providing- the- services under this Agreement. Gontractorand the City acltnowledge- that this Agreement does not create. a or joint venture between; tlrem, and ls exclusively a contract for senrlce-. Any employees furnished by Contractor,. pursuant to this I Agreement, will be employees of Contractor. Contractor will malntaln . complete control over the employees' oonduot and will disburse all payrolls, taxes, license, and insurahces, during the- term of this Agreement. . 9. Connector shall be- properly licensed. and-- ln respective I trade. 2 10. Contractor and City shall cooperate to complete the Services ln a manner . satisfactory to both parties and as as possible. 11. Contractor shall have independence and compiete control of the forensic Inventory Including control of form, procedure, schedule, reporting and process-during the term of this Agreement; - 12 Contractor shall comply with all state, federal or local laws', or ordinances, codes, rules or regulations govemlno performance of this A -reement, including but not limited to, equal opportunity employment laws, minimum wage and hour regulation,. North Carolina State Building Code regulations and laws. 13. Contractor shall maintain all fiscal records relating to this Agreement- in . accordance. with Generally Accepted Accounting Principles, and shall maintain any- other records pertinent to thts-Agreement ln a manner so as - to clearly document Contractors performance. The City shall have a right to access the fiscal and other records. of Contractor that are? pertinent to- . this Agreement to perform examinations and audits. Contractor shall retain and keep accessible all the fiscal and other records- for a minimum. . of three (3) years following flnal. payment and. termination of this. Agreement, or until the conclusion of any audit or controversy related to this Agreement, whichever is later. 14. Upon completion of the inventory, Contractor shall return to the City all equipment and materials, including? but not limited to all computer equipment, software- and databases, provided tothe Contractor by the City ln order to perform the services contemplated. in this-Agreement. The City shall be sole owner of said equipment and materials. upon completion of the forensic inventory. . - 15. Upon completion of the forensic inventory, Contractor shall provide the . District Attorney with a copy of the final report of the results of- the- inventory and any- recommendations, if applicable. Contractor shall . 5 provide the City a copy of the final report unless the release of I tnform_atlon_ provided ln the final report. as determined by- the District- . Attorney:. is likely to jeopardize the State's abillty to prosecute a defendant; or 2) is likely to undermine an ongoing or future criminal investigation. ln the event the above-stated -cond_ltIons apply, Contractor,. in consultation with the District Attorney, shall redact. or remove from the final report such confidential information and provide. the. City with a- copy ofthe. remaining information contained in the flnalreport. B. CONFIDENTIALIIX: Contractor agrees that neither it nor its employees will disclose, divulge, reveal, report or use, for any- purpose, any information with i respect to the business. of the City,. which the Contractor hasrobtalned, except to the DlS`tl'lCl Attorney and any assistant or supportstaff designated by the District . Attorney, any state or federal law enforcement agency or as directed by a lawful order of any court of competent jurisdiction. This obligation will survive 1 upon termination- of this Agreement; . 3 - a G-. INSUBANCE: The work performed under this Agreement hasbeen as a standard risk protlle. The Contractor agrees to lceep and maintain for the duration of this Agreement the following: 1) Workers Compensation: statutory 2) Employers liability: $100,000 each accIdentI$100,000 each disease] $500,000ldisease? policy limit 3) General liability: $500,000 4) Professional The Contractor shall furnish the City with certitlcates of insurance for each type of Insurance described herein. ln_ the event of cancellation, substantial changes or . nonrenewal. the Contractor and Insurance carrier shall give the City at (30) days prior written notice. No work- shalt be performed by Contractor until Contractor has fumlshed to the City the above- referenced of i 2 insurance, In a form suitable to the City. D. Contractor shall indemnify, -del'erid. and hold harmless ttre City and its officers, directors and employees from all liability,. loss, costs, claims, damages, expenses,. attorney fees, judgments and i awards arising or claimed to have- arisen, from any injury caused by-, or allegedly . caused by, either in. whole or in pa.rt, any negligent act or omission of the Contractor or any emptoyee, agent or assign of the Contractor. The Clty shall indemnify, defend and- hold harmless the Contractor and its employees from all liability, loss, costs, claims, damages, expenses, attorney fees, _judgments and awards arising or claimed to have arlsen, from any injury caused by, or allegedly caused by, either tn. whole or In part, any negllgentact or omission of the City or I any emptoyee, agent or assign ofthe City. Nothing herein shall be construed as. a waiver on the part of the City to any dmnse of any clalm, Including, but not limited to. the defense of governmental - immunity. E. TERMINATION: This Agreement. may be terminated by either party, with thirty- (30) days notice, Notice shall be served under this Agreement by registered mail, certified mall or by hand-delivery. Except as otherwise provided In this Agreement, the obligations of the Contractor will cease upon termination of the- Agreement; If the City terminates the Agreement before 500 hours of work is completed, a termination fee of $2,500.00 shall be paid to the i Contractor, which shall be in addition to, and not In lleu of, any amount owed to Contractor pursuant to Sections. 4 and 5 above. F. Any amendment. or modification of this Agreement will only- be binding it evidenced in writing signed by each party or an authorized . representative of each party-. i G-. ENTTRE AGREEMENT: This agreement contains- the entire agreement between the parties. It is agreed that there is no representation, warranty, collate-ral agreement or condition enacting. this Agreement except as In this- Agreement. I H. Should any provision or provtslons contained in agreement be declared by at court or competent jurlsdictlon to be vold, unenforceable or Illegal, such provision or provisions shall be severable- and the provisions hereof shall remain in full force and effect. l. This contract Is entered into in North Carolina and shall be I construed under the statutes and laws of North Carolina. J. This contract ls not assignable by either party without the prior ?consent ofthe other party. I K. REQUIBEMEN CITY CONTRACTS: - 1. Contractor shall comply with the provlslohs: of the Amerlcarts- with I Disabilities Act and all rules and regulations promulgated thereunder. Contractor hereby agrees- to the City from and against all I claims, sults, dama es, costs, losses and expenses in any manner I - out of or connected the- failure of Contractor, its subcontractors.; agents, successors, assigns, officers or employees to comply with the provisions of- the ADA or the rules and regulations promulgated thereunder. I 2. comply with the Clty's Drug; Free Workplace policyBY: - . I BLU SYST I SERVICES-LLC I Signature- I I I I 'ohaeI Wr . STATE OF NORTH CAROLINA I COUNTY OF BUNCOIVIBE 1; xg?hdrg Ida a Notary Public for said County and State do I hereby certify that Michael Wright, MemberlManager of Bluellne Systems Services; a limited liability company, personally appeared before `?me this day and acknowledged the due execution of the foregoing Instrument on behalf of the company. Witness my hand and notarial seal this day of B- JMDL I im . ez public . Printed Name: r` P- Cb mil My.CommIssI?n ExpiresSchedule I Organize 4-person teams of property and evldence- Iocat0rs,__exa1nIners and although teams may work independent of one another and at different times. Teams may work as a team with as few as two team members present. Construct clean-workstations to forenslcally examine property and evidence-reviewed the audit. Each Item be pulled up in the OSSI computer system. I Pendingor completed cases will require cross-referencing to criminal court tile numbers. The Item will be located on the shelf or bln. I The seals be examined and evaluated for compliance with proper forensic technique . including record keeping and document such action taken respect to each Item., Anything noted as irregular will be referred to the State Bureau'of'lnvestigatlon (herein for investigation as they deeln warranted. Bench. notes be made regarding the l'tern's condition andthe actions ofthose making the in pection. The package and seals will be photographed. of each Item both before opening (if reseallng (lt applicable). The contents will be verified ln such- a way as to preserve custody marks- lf I possible. The be glcved and use proper forensic procedures. . Item will be resealed and marked with inventory barcode to evidence that the Item was inspected. . Items passing Inspection will begreen tagged. The stan_dard shall? be: atl numbers. and- information match records. Seals and initials. unbroken and rn place, no- evidence of tampering. All contents present and match description, weight and quantity. No visible evidence of substitution. I Items-with mlnor discrepancies (clerical errors, Inversion of numbers, missing tag;. etc;) will be yellow tagged. The-standard shall be: fails any element of green tag standard but may be correctabls with furtherresearch or -no evldence of tampering. Notes of such further research be included In report. Items with major problems will be. red tagged or yellow tagged and reported to the SBI for further action or instruction. A form will be completed for each package. Items where weight as been weighed will also _be.wefghed; lf a discrepancy appears to - exist. a notatlon ofthe difference be-recorded. - A spreadsheet style database will be complied. i Status updates and requests for information flow freely between the Contractor and the District Attorney and Go ntrector meet with the District Attorney as requested. . Contractor will meet with IT as necoeeary to lhsufe that the project is- completed and . date assembled es efficiently as possible. . Contractor wilt cooperate-on an ongoing basis with the SBI investigation es requested Schedule Additional Duties of Customer The Customer shall following: i ln view of the proprietary nature ofthe OSSI software, the City shall provide OSSI - - consulting as requested by the Contractor. . - The surrender any and all keys to the former evidence room. ln question to Contractor. Upon surrender, Contractor will reset the alarm to?the former evidence room to a new code. TherCity=shallf nothhave access to the- new code andthe new code shall be known only to Contractor and employees. The City shall notify all of its-employees that no one is- allowed in the former vldence room. except. for Contractor, unless. - Contractor expressly requests the presence. of a person and only if that person ieaecompanled by the Contractor. One liaison for business related issues.-such as ordering supplies, billing, time sheets,. purchasing and- maintenancea . One Secure fax llrre. *l copy of GALEA standards for property and evidence. I . Copy of CALEA- standards for property and evidence as adopted by the Asheville. Police Department. assistance with archivihg and audit trail for and Involved- computers. i . i ro Schedule Procedures I All procedures to. be used by Contractor will be reviewed by the office ofthe District Attorney of the 28"' Judicial District. Since the Attorney of the 28"' Judicial District is familiar with the- pending case, the age of such cases as well as the importance or priority of all cases, the District Attomey may, from time to time, suggest tothe Contractor the priority order of such inventory research. When a team is present in the properly area. at least two persons shall be ln the room at all times. . At least 30- hours. per week shall be expended on the projectuntil completed. Examiners shall be trained in proper forensic procedures. . i i . 11 Jan. 20, 2012 District Attomey Moore, This is an open records request for the audit report of the APD evidence room, completed around Jan. 9, such sections of that as can be made public, or a statement of the reasons why the report can not be released. Thank you for your help and assistance in this matter. Sincerely, David Forbes I . Senior News Reporter - Mountain Xpress 828-251-1333, xl37 . Ex:-narr . 2` Wall St. Shiite 212 my; PO Box 144 lla I Asheville, NC 28802 828-251-1333 - . - 3 Ci . mx 251-131-1 . March-23, 2012 District Attorney Moore, . . I This is a followup to our open records request of Jan. 20 for the audit ofthe Asheville Police Department evidence room completed 811. 9. No response to that request has been forthcoming, either . to turn over the requmted documents or cite a speciic statutory reason why they may be withheld. N.C.G.S. 132-6 custodians of public records provide `copies "as as possib1e" after a request. Morethan tviro months is well past areasonable period of time to craft a response to our request for - . We have attorneys at the North Carolina Press Association, who advise us that evidence room audit generally do not Ml under the criminal investigations exception allowed by N.C.G.S. 132-1.4, as public records. That section of law specifically notes "the 1 use of a public record inlcomiection with a criminal investigation or the gathering of criminal 2 intelligence shall not aEect as a public record." Please honor our second records request and turn over the audit report prompty. Sincerely, I I - l)avid Forbes . Senior News Reporter, Mountain Xpress . et Williams .. News Editor, Mountain Xpress . . Jeri Fobes 2 . Publisher, Mounmin Xpress . weeuy Independent nam, Arts e. neun 5 EXHIBIT - I VOICE Randy Hammer President and Publisher April 19, 2012 I - Ron Moore - I District Attorney Buncombe County Courthouse . 60 Court Plaza . Asheville, N.C. 28802 Ron Moore, . I This is a public records request for the police evidence room audit that was completed this year. Please send the audit via e-mail. Ifyou cannot and the audit has to be given in the form of paper copies, please let me know as soon as possible and I will come by to pick up the_rep_ort._ If you cannot give the audit, please cite speciic legislation that prevents you from complying with state open records law. Thanks -much, Joel Burgess - Reporter Asheville Citizen-Times . . ?828.232.5960 (828) 232-5933 DIRECT (828) 252-5887 FAX 14 0. HENRY AVE. P.0. BOX 2090 ASHEVILLE, NC 28802 1 (800) 800-4204 .4 gm gzogg ?Qm c?9?gmI-3 mg-? .9 Nm Q. wm pai 2-gma- z?qagimp gn 8 - 0 2%.?52. 9.. - 2 .. FEE Es.; . ES.: PUBLIC PRESS in-depth, investigative, independent 2 reporting for Western North Carolina Angie Newsome Editor and Director Carolina Public Press PO Box 17595 Asheville, NC 28816 . Phone: 828-279-0949 April 24, 2012 Buncombe County District Attomey's Office Buncombe County Courthouse PO Box 7158 Asheville, N.C. 28802 Phone: 828--259--34l0 Fax: 828-259-3411 RECORDS REQUEST Dear Mr. Ron Moore and/or Records Request Oihcer: Pursuant to the state open records act, I request access to and copies ofthe full and complete audit of the Asheville Police Department's evidence room, as produced and delivered by Blueline Systems Services. Because we are acting in the public interest, will use the materials to educate the public and are a nonprofit media organization, we request a fee waiver for any and all materials falling within this records request. If a fee waiver is not granted, we request to be informed if the costs exceed $10. A digital copy of the audit is acceptable. . If my request is denied in whole or part, I ask that you justify all deletions by reference to specific exemptions relevant to the material requested. Thank you for your assistance. You may respond to this request by e-mail to Please call me at the above phone number if you have any questions. Sincerely, Angie Newsome Editor and Director Carolina Public Press and carolinapublicpress.org PO Box 17595, Asheville, NC 28816 Tel B28.279.0949 Fax s2a.255.a292 A onsored ro'ect of the InstOA AROLINA PUBLIC PRESS 4; in-depth investigative independent reporting for Western North Carolina Angie Newsome - Editor and Director Carolina Public Press PO Box 17595 Asheville, NC 28816 Phone: 828-279-0949 May 1, 2012 Asheville Police Department P.O. Box 7148, Asheville, NC 28802 Phone: 828-259-5855 Sent via e-mail to: 'welch ashevillenc. ov - RECORDS RE UEST I i Dear Lt. Wallace Welch, and/or other Records Request Ofiicer: . Pursuant to the state open records act, I request access to and copies ofthe full and complete audit of the Asheville Police Departments evidence room, as produced and delivered by Blueline Systems Services. Because we are acting in the public interest, will use the materials to educate the public and are a nonprofit media organization, we request a fee waiver for any and all materials falling within this records request. If a fee waiver is not granted, we request to be informed if the costs exceed $10. A digital copy of the audit is acceptable. Ifmy request is denied in whole or part, I ask that you justify all deletions by reference to specific exemptions relevant to the material requested. Thank you for your assistance. You may respond to this request by e-mail to anewsome carolina ublic ress.or . Please call me at the above phone number if you have any questions. I Sincerely, Angie Newsome Editor and Director Carolina Public Press and carolinapublicpressorg CC: Charles Coble, attorney, Brooks Pierce . PO Box 17595, Asheville, NC 28816 Tel 828.279.0949 Fax a2a.2s5.a292 A sponsored project of the Institute for Southern Studies EXHIBIT caro1inapub1icpress.org I os PUBLIC PRESS in-depth investigative independent reporting for Western North Carolina Angie Newsome Editor and Director Carolina Public Press . - PO Box 17595 Asheville, NC 28816 Phone: 828-279-0949 May 1, 2012 Buncombe County District Attomey's Office PO Box 7158 Asheville, N.C. 28802 . Phone: 828-259-3410 Fax: 828-259-3411 SECOND RECORDS REQUEST First request faxed April 24, 2012. Confirmed receipt. No response. Dear Mr. Ron Moore and/or Records Request Officer: Pursuant to the state open records act, I request access to and copies ofthe full and complete audit of the Asheville Police Department's evidence room, as produced and delivered by Blueline Systems Services. Because we are acting in the public interest, will use the materials to educate the public and are a nonproit media organization, we request a fee waiver for any and all materials falling within this records request. If a fee waiver is not granted, we request to be informed if the costs exceed $10. A digital copy of the audit is acceptable. If my request is denied in whole or part, I ask that you justify all deletions by reference to specific exemptions relevant to the material requested. Thank you for your assistance. You may respond to this request by e-mail to Please call me at the above phone number if you have any questions. Sincerely, Angie Newsome Editor and Director Carolina Public Press and carolinapublicpressorg PO Box 17595, Asheville, NC 28816 Tel 828.279.0949 Fax 822;.255.8292 - A sponsored proj ect of the Institute for Southern Studies carolinapubli.cpress.org - i< - in-depth, investigative, independent reporting for Western North Carolina CC: Charles Coble, attorney, Brooks Pierce PO Box 17595, Asheville, NC 28816 Tel 828.279.0949 Fax I 828.255.8292 A sponsored project of the Institute for Southern Studies carolinapublicpress.org