dissenting.
For the reasons stated below, I respectfully dissent from the majority opinion affirming the dismissal of plaintiffs complaint for failure to state a claim pursuant to Rule 12(b)(6) of our Rules of Civil Procedure.
The Public Records Act requires state government agencies to grant reasonable access to public records when requested. “[I]t 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.” N.C. Gen. Stat. § 132-l(b) (2007). N.C. Gen. Stat. § 132-9 provides a cause of action when a government agency denies access to public records:
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.
N.C. Gen. Stat. § 132-9(a) (2007).
The majority holds that, to make a valid claim under the Public Records Act, a plaintiff must plead that defendants “were in possession of. . . particular public records that were being wrongfully withheld” and that alleging that defendants “had failed to provide portions of.. . requested public records” was insufficient. Our courts have not yet specified the elements needed to make such a claim, but, based upon the plain language of § 132-9(a), it appears clear that a plaintiff must allege that (1) it sought access to public records (2) for purposes of inspection and examination and (3) was denied access to those public records. I see no statutory requirement that a plaintiff plead that the government has possession of the requested public documents. Whether the government agency has possession of the requested documents is perhaps a valid defense to a claim under § 132-9, but does not appear in the statute creating the cause of *729action. Moreover, the definition of “public records” does not include a “possession” requirement. Instead, whether a particular record is “public” is based in the purpose of the record’s creation. See N.C. Gen. Stat. § 132-1 (2007) (“ ‘Public record’ or ‘public records’ shall mean 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 added). Accordingly, I believe that plaintiff adequately pled that it sought access to public records for purposes of inspection and examination and that defendants did not provide access to those public records; plaintiff’s use of the phrase “did not provide” rather than “denied access” in the complaint is inconsequential.
I also believe that the majority’s interpretation of the elements of a legitimate claim under the Public Records Act is inconsistent with our holding in Gannett Pacific Corp. v. N.C. State Bureau of Investigation, 164 N.C. App. 154, 595 S.E.2d 162 (2004). In Gannett, the plaintiff news corporation sought records of a criminal investigation conducted by the SBI by filing a request under the Public Records Act. Id. at 155, 595 S.E.2d at 163. The SBI completely denied Gannett’s request and Gannett brought suit under the Public Records Act. Id. at 159, 595 S.E.2d at 165. The SBI moved to dismiss for failure to state a claim, pursuant to Rule 12(b)(6). Id. at 145, 595 S.E.2d at 163. The trial court granted the motion and dismissed; Gannett appealed to this Court, which reversed and remanded. Id. We explained that, although Gannett was not entitled to disclosure of “the SBI’s records of its criminal investigation or criminal intelligence information,” it was “entitled to release of any other information classified as public records under the North Carolina General Statutes.” Id. at 155-56, 595 S.E.2d at 163. Because Gannett requested “all public records relating to the investigation of the May 3, 2002 fire at the Mitchell County, North Carolina jail,” the SBI’s categorical denial was improper because its records likely extended beyond the exempted material and included public records. Id. at 159, 595 S.E.2d at 165. We explained:
The burden is on the SBI to comply with Plaintiffs’ request by reviewing its records and releasing all information relating to the Mitchell County fire defined as public records. If, after reviewing its records, the SBI determines it does not have cus*730tody of any information classified as public records, denial of Plaintiffs’ request may be appropriate. Before this determination is made, however, dismissal of Plaintiffs’ complaint is premature.
Id. (emphases added). Certainly, dismissal of a Public Records Act complaint may be appropriate if the government determines that it does not have custody of certain requested public records. However, dismissal is not required, especially when it appears that the requested documents are public records and exist, but have not been provided because the government deems a request to be “overly broad and complex, requiring documents from numerous sources and time periods” as defendants stated in an 18 January 2008 letter to plaintiff.
Here, plaintiff has a believable claim that defendants have improperly denied access to certain requested public records. Plaintiff appended, as an exhibit to its complaint, a 24 January 2008 letter to Sara Y. Lang, Director of Communications for the North Carolina Department of State Treasurer. In this letter, plaintiff described with specificity documents that it believed were public and had not been released by defendants:
With Ms. Lang’s January 18 letter you appear to have provided most of the e-mail correspondence from representatives of Forbes to Sara Lang. However, it is clear that not all documents containing correspondence from Forbes has been provided. The January 19, 2007, 3:43 p.m. e-mail from Kai Falkenberg to Ms. Lang refers to an attached letter “a copy of which — with enclosures — has also been sent to you by fax.” You have provided neither that letter nor the enclosures. Moreover, Neil Weinberg’s message on the same date refers to a letter faxed to Ms. Lang from Forbes’ attorney. If this is not the same letter referred to by Ms. Falkenberg, then you have not provided a copy of it.
In addition, except for some responses that are attachéd to the Forbes e-mails, you have not provided all responses from Ms. Lang to Forbes. For example, attached to the February 14, 2007, e-mail message from Jason Storbakken is an e-mail from Ms. Lang stating: “Please see answers inserted in your original e-mail below.” However, you have not produced the e-mail that contains Ms. Lang’s answers. Moreover, attached to Jason Storbaklcen’s message of February 14, 2007, 6:16 p.m., is a message stating: “On 2/14/07 PM, ‘Sara Lang’.. . wrote:” but the text of Ms. Lang’s message is omitted. It is difficult for me to draw any conclusion *731except that Ms. Lang’s message has been intentionally deleted from the document.
Finally, based on the size of the fee paid to the retained law firm and, thus, the number of hours that firm must have worked on this issue, it would appear that there must have been electronic or written correspondence between your office and that law firm regarding the Forbes public information request. However, no copies of any such correspondence have been produced.
The letter also reiterated that defendants had still not provided copies of the investment reports that the State Treasurer must file pursuant to N.C. Gen. Stat. § 147-69.3(h)-(i) even though those reports “are apparently from a set of reports routinely compiled and readily accessible for copying.”
Accordingly, I would reverse the trial court’s order dismissing plaintiff’s complaint.