Top NC court urged to take public records case linked to COVID, UNC

University of North Carolina seal in sidewalk — Carolina Journal photo by Mitch Kokai

A group seeking public records that could link the University of North Carolina at Chapel Hill to COVID-19’s origins is asking the state’s highest court for help.

US Right to Know filed a petition Thursday urging the North Carolina Supreme Court to hear the group’s public records dispute with UNC-CH.

The state Court of Appeals ruled against US Right to Know on Jan. 7.

The group, which describes itself as a “nonprofit newsroom and public health research group,” has been asking UNC since 2020 for records related to Professor Ralph Baric “and his collaboration with the Wuhan Institute of Virology” in China.

“The subject matter of this case is of great public interest, since more than one million American lives have been lost because of COVID-19,” the group’s lawyers wrote in the Supreme Court petition. “This case is also of significant public interest in that the National Institutes of Health reports, per the NIH RePORTER, that Dr. Baric has been awarded grants or other funding for projects and sub-projects in an amount exceeding $200 million since 1986.”

An initial public records request in July 2020 led UNC to report “that there were 3.36 gigabytes of records, which was estimated to be over 336,000 pages of documents,” according to the court filing. “Most of these records were not turned over to US Right to Know.”

Of more than 88,000 pages of documents ultimately pulled in response to multiple records requests, the university turned over roughly 530 pages, according to the court filing. UNC cited a university research exemption in the state’s public records law when withholding many of the requested documents.

“The COVID-19 pandemic caused a seismic shift in the social, medical, political, and legal landscape of not only the State of North Carolina, but the entire world,” US Right to Know’s lawyers wrote. “One of the most hotly contested issues surrounding the pandemic is its origin. The public’s access to documents and other records concerning Dr. Baric’s collaboration with the Wuhan Institute of Virology is of significant public interest. The documents to which USRTK seeks access may hold answers or a path toward the answer of the origins of COVID-19.”

The petition asks North Carolina’s highest court to overturn lower court rulings favoring UNC.

The unanimous Jan. 7 Appeals Court decision upheld a trial judge’s 2024 ruling accepting the university’s interpretation of the public records law’s research exemption.

“In this case, we are presented with a question of statutory interpretation regarding an exception from the Public Records Act, section 132-1, contained in section 116-43.17,” wrote Judge Jefferson Griffin.

US Right to Know presented two arguments, Griffin explained. “First, Plaintiff argues ‘the trial court erred in concluding that the phrase “of a proprietary nature” in [section] 116-43.17 only modified the word “information” and does not modify either “data” or “records.”’ Second, Plaintiff argues ‘the trial court erred in interpreting the phrase “proprietary nature” in [section] 116-43.17 broadly “to include information in which the owner has a protectable interest.”’ We disagree.”

Griffin tackled the text of the disputed provision. “[T]he context of the plain text does not indicate the phrase ‘of a proprietary nature’ modifies any other term apart from ‘information,’” he wrote. “Here … the phrase ‘or information of a proprietary nature’ is grammatically separated by punctuation — commas — indicating that the prepositional phrase ‘of a proprietary nature’ solely modifies the noun preceding it, ‘information.’”

That interpretation means that university research data and records do not have to be “of a proprietary nature” to enjoy the protection of the public records exemption.

The “legislature’s intent, as derived from the text,” also supports that interpretation, Griffin wrote.

“[I]n section 116-43.17, the General Assembly placed ‘of a proprietary nature’ within a clause with ‘information’ separated by punctation, which by context indicated the phrase modified only ‘information,’” he explained. “However, in other exceptions and exemptions from the Public Records Act, the General Assembly used the term ‘proprietary information’ and clearly placed the term proprietary in positions at the beginning of the statutory text, indicating proprietary modified multiple terms or clauses.”

“[T]he General Assembly exempted proprietary information in other contexts from the Public Records Act and used different sentence structures than the one at issue when conveying the term ‘proprietary’ modified more than one term, supporting the General Assembly’s intent for the phrase ‘of a proprietary nature’ to only modify ‘information’ here,” Griffin wrote. “Therefore, the phrase ‘of a proprietary nature’ in section 116-43.17 solely modifies ‘information.’”

The Appeals Court also rejected US Right to Know’s argument that “proprietary information” should be defined as a “trade secret.”

“While ‘proprietary information’ includes trade secrets, ‘proprietary information’ extends beyond the definition of trade secrets,” Griffin wrote. “Thus, because the General Assembly chose to use ‘information of a proprietary nature’ and not ‘trade secret,’ we decline to, and in fact cannot, swap the definition of ‘trade secret’ for ‘proprietary information.’”

“Therefore, the trial court did not err in defining ‘proprietary information’ pertaining to research to ‘include information in which the owner has protectable interest,’” Griffin added.

“We are disappointed in today’s result,” said Gary Ruskin, US Right to Know executive director, in an email to Carolina Journal. “We believe that the public has a right to know where the Covid pandemic may have come from. We believe that the University of North Carolina, as an institution of higher learning, should help the public understand the lessons of the pandemic, and not obscure or bury them. We are evaluating our legal options and potential next steps.”

The disputed “research exemption” in NC Gen. Stat. § 116-43.17 says: “Research data, records, or information of a proprietary nature, produced or collected by or for state institutions of higher learning in the conduct of commercial, scientific, or technical research where the data, records, or information has not been patented, published, or copyrighted are not public records as defined by G.S. 132-1.”

The plaintiffs filed suit in April 2022. Superior Court Judge Alyson Adams Grine issued an order in October 2024 accepting UNC’s interpretation of the research exemption.

“Rather than applying the narrowest possible definition to the statute, the trial court instead erroneously applied the broadest possible interpretation of the research exemption,” the plaintiff’s lawyers argued.

“The scheme of the Public Records Act is that the records produced by our government, with our money and our employees, elected officials, or appointed officials, belong to the people and unless it is absolutely certain that the record should not be produced pursuant to a narrowly-defined exemption or exception, it must be produced,” the court filing added.

“The proper reading of N.C. Gen. Stat. § 116-43.17 is that it excludes only ‘research data of a proprietary nature, research records of a proprietary nature, or research information of a proprietary nature,’” the plaintiff’s brief argued. “Treating the word ‘proprietary’ to be defined as a trade secret is an appropriate and straightforward reading that would advance the dual purposes of the legislature to have access to records as broad as possible while reading exclusions as narrow as possible.”

“The broad interpretation given by the trial court to the word ‘proprietary’ nearly, if not completely, causes the exception to swallow the rule, making almost all university records relating in any way to research not subject to disclosure,” the brief argued.

“Given the default nature of the statutory scheme of the Public Records Act (that all records are subject to disclosure), and our appellate courts’ admonitions that exceptions and exemptions to that broad statutory language are to be interpreted narrowly, the General Assembly could not have intended to exclude such a vast number of records from the Act’s purview,” US Right to Know’s lawyers wrote. “It is much more likely that the General Assembly recognized the competitive nature of scientific research among the nation’s universities and simply sought to shield and protect against disclosure information that was akin to a trade secret in the commercial context.”

“Accordingly, the trial court erred in not treating the term ‘proprietary’ to be synonymous with ‘trade secret.’ This Court should hold that the most narrow definition applies to the term, and reverse the decision of the trial court,” the brief concluded.

Carolina Journal reported in November 2024 that Dr. Robert Redfield, former director of the federal Centers for Disease Control and Prevention, claimed in a podcast interview that COVID-19 was started in a lab at UNC-Chapel Hill. Redfield called Baric the “scientific mastermind behind the research.”

“Top NC court urged to take public records case linked to COVID, UNC” was originally published on www.carolinajournal.com.