GSNC

§ 132-1. "Public records" defined.

"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. Agency of North Carolina government or its subdivisions shall mean and include every public office, public officer or official (State or local, elected or appointed), institution, board, commission, bureau, council, department, authority or other unit of government of the State or of any county, unit, special district or other political subdivision of government.
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.

History

(1935, c. 265, s. 1; 1975, c. 787, s. 1; 1995, c. 388, s. 1.)

Local Modification. - Alamance: 1987 (Reg. Sess., 1988), c. 950, s. 1(c); Ashe: 1991, c. 163, s. 1(c), as amended by 2007-527, s. 21(dd); Caldwell: 1987, c. 472, s. 1(c), as amended by 2007-527, s. 21(s); Cleveland: 1989, c. 173, s. 1(c), as amended by 2007-527, s. 21(aa); Cumberland: 1993, ch. 413, s. 5; Davidson: 1993, c. 453, s. 1(c), as amended by 2007-527, s. 21(ii); Davie: 1989 (Reg. Sess., 1990), c. 928, s. 1(c); Gaston: 1987, c. 618, s. 1(c), as amended by 2007-527, s. 21(w); Guilford: 1993, c. 82, s. 1; 1995, c. 432, s. 1; Hertford: 1987 (Reg. Sess., 1988), c. 979, s. 1(c); Hyde: 1991, c. 230, s. 1(c), as amended by 2007-527, s. 21(ee); Lee: 1987, c. 538, s. 1(c), as amended by 2007-527, s. 21(u); Lenoir: 1987, c. 561, s. 1(c), as amended by 2007-527, s. 21(v); Lincoln: 1993, c. 549, s. 1, as amended by 2007-527, s. 21(jj); Mecklenburg: 1993, c. 82, s. 1; 1995, c. 432, s. 1; Mitchell: 1987, c. 141, s. 1(c), as amended by 2007-527, s. 21(m); Nash: 1987, c. 32; 1993, c. 82, s. 1; 1993, c. 545; 1995, c. 432, s. 1; New Hanover: 1995, c. 432, s. 1; (As to Chapter 132) Onslow: 2013-37, s. 1(i); Pender: 1987 (Reg. Sess., 1988), c. 970, s. 1(c) (repealed by 2001-439, s. 6.1, on effective date of a tax levied under the 2001 act); Pitt: 1987, c. 143, s. 1(c), as amended by 2007-527, s. 21(n); 1993, c. 82, s. 1; 1993, ch. 410, s. 1; 1995, c. 432, s. 1; Rutherford: 1991, c. 577, s. 5(c), as amended by 2007-527, s. 21(gg); Wake: 1991, c. 594, s. 9, as amended by 2007-527, s. 21(hh); 1995, c. 458, s. 5; Washington: 1991 (Reg. Sess., 1992), c. 821; Yancey: 1987, c. 140, s. 1(c), as amended by 2007-527, s. 21( l ); city of Albemarle: 1991 (Reg. Sess., 1992), c. 915 (repealed on effective date of a tax levied under 2001-434, ss. 6, 7, by the County of Stanly); (As to Chapter 132) city of Charlotte: 2000-26, s. 1, as amended by 2007-255, s.1; city of Conover: 1987, c. 319, s. 1; city of Greensboro: 1987, c. 51; 1989, c. 383, s. 1; 1993, c. 82, s. 1; 1995, c. 432, s. 1; city of Hickory: 1987, c. 319, s. 1; city of High Point: 1993, c. 82, s. 1; 1995, c. 432, s. 1; city of Kinston: 1993 (Reg. Sess., 1994), c. 648, s. 1(c), as amended by Session Laws 2007-527, s. 21( ll ); (As to Chapter 132) city of Rocky Mount: 2003-327, as amended by 2009-74; city of Thomasville: 1993, c. 453, s. 1(c); city of Wilmington: 1995, c. 432, s. 1; town of Blowing Rock: 1987, c. 171, s. 1(c); town of Cary: 1989 (Reg. Sess., 1990), c. 874, s. 1(c); town of Columbus: 1991, c. 632, s. 1(c); town of Garner: 1989, c. 660, s. 1(c); town of Hillsborough: 1993, c. 449, s. 1(e); town of Oriental: 1993 (Reg. Sess., 1994), c. 695, s. 1(c); town of Wake Forest: 1989, c. 604, s. 1(c); Averasboro Township: 1987, c. 142; village of Bald Head Island: 1991, c. 664, s. 2(c).

Cross References. - For the Address Confidentiality Program, see G.S. 15C-1 et seq.

As to the use and confidential nature of actual addresses of Address Confidentiality Program participants by boards of elections for election-related purposes, see G.S. 15C-8.

For requirements regarding marking and issuance of license plates for publicly owned vehicles, see G.S. 20-39.1.

For provision that the report and affidavit required by G.S. 58-21-35 are not public records under this section, see G.S. 58-21-35.

For provision that records, papers, and other documents containing information collected and compiled by the Board of Law Examiners or its members or employees as a result of investigations, inquiries, or interviews conducted in connection with examinations or licensing matters, are not public records within the meaning of this Chapter, see G.S. 84-24.

As to records of education agencies, see G.S. 115C-3.

As to diaries kept in connection with construction or repair contracts, see G.S. 136-28.5.

As to Government Data Analytics Center and release of information relating to the data integration and data-sharing initiative, see G.S. 143B-1385.

Editor's Note. - For provisions in Session Laws 2010-31, s. 10.26(a)-(e), pertaining to the creation of a Medicare fraud prevention program that utilizes certain information to develop a fraud risk analysis of Medicaid providers and recipients, see the Editor's note at G.S. 108A-70.10. Pursuant to Session Laws 2010-31, s. 10.26(b), the information obtained by the Department of Health and Human Services under those provisions is not a public record within the meaning of G.S. 132-1.

Session Laws 2010-31, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2010'."

Session Laws 2010-31, s. 32.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2010-2011 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2010-2011 fiscal year."

Session Laws 2010-31, s. 32.6, is a severability clause.

Legal Periodicals. - For comment on public access to government-held records, see 55 N.C.L. Rev. 1187 (1977).

For note on the public's access to public records, see 60 N.C.L. Rev. 853 (1982).

For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).

For comment, "You Can't Always Get What You Want: A Look at North Carolina's Public Records Law," see 72 N.C.L. Rev. 1527 (1994).

For article, "Fired by Liars: Due Process Implications in the Recent Changes to North Carolina's Public Disclosure Laws," see 89 N.C.L. Rev. 2228 (2011).

For comment, "Giving Away the Playbook: How North Carolina's Public Records Law Can Be Used to Harass, Intimidate, and Spy," see 91 N.C. L. Rev. 2117 (2013).

For article, "'Tuning Up' North Carolina's Public Records Act: A Brief Discussion of Problem Areas and Possible Solutions," see 9 Elon L. Rev. 23 (2017).

For article, "Defining North Carolina's Public Records and Open Meetings Feeshifting Provisions in the Larger National Context," see 96 N.C.L. Rev. 1725 (2018).

I. GENERAL CONSIDERATION.

Railroad Company Not Subject to Act. - Railroad company was not an agency or subdivision of government subject to Public Records Act; there would have been no need for the enactment of G.S. 124-17(b), which required the company to provide information to the General Assembly without limiting such to confidential information, in the event the company was already subject to the Act. Mere fact that the State had certain authority as the company's sole shareholder did not suffice to make the company a governmental agency subject to the Act. S. Envtl. Law Ctr. v. N.C. R.R. Co., 378 N.C. 202, 861 S.E.2d 533 (2021).

Legislative Intent. - By enacting the Public Records Act, the legislature intended to provide that, as a general rule, the public would have liberal access to public records. News & Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992).

Access to public records in this State is governed by Chapter 132 which provides for liberal access. Virmani v. Presbyterian Health Servs. Corp., 127 N.C. App. 629, 493 S.E.2d 310 (1997), aff'd in part and rev'd in part on other grounds, 350 N.C. 449, 515 S.E.2d 675 (1999).

Construction. - The framers' use of the imperative word "shall" places constitutional limits on a court's discretion in exercising control of its proceedings and creates a strong presumption that court proceedings be open to the litigants and the public; however, there are some circumstances when a court may close proceedings and seal court records. Virmani v. Presbyterian Health Servs. Corp., 127 N.C. App. 629, 493 S.E.2d 310 (1997), aff'd in part and rev'd in part on other grounds, 350 N.C. 449, 515 S.E.2d 675 (1999).

Trial court erred in granting summary judgment to a newspaper in its action under the Public Records Act, G.S. 132-1 et seq., and the Public Hospital Personnel Act, G.S. 131E-257 et seq., seeking disclosure of public hospital employee salary information, as such was protected from disclosure, except as to current salary, pursuant to G.S. 131E-257.2; information contained in an employee's personnel file was "gathered" by the hospital, pursuant to the use of that term under G.S. 131E-257.2(a), as it was not construed narrowly, but rather, read to mean amassed or collected in one place. Knight Publ'g Co. v. Charlotte-Mecklenburg Hosp. Auth., 172 N.C. App. 486, 616 S.E.2d 602, cert. denied, 360 N.C. 176, 626 S.E.2d 299 (2005).

Because the North Carolina Public Records Law was enacted pursuant to the state's general policy that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law, and nothing in the Public Records Law refers to or specifically pertains to either pardons or clemency, it is not a law relative to the manner of applying for pardons under N.C. Const., Art. III, § 5(6). News & Observer Publ'g Co. v. Easley, 182 N.C. App. 14, 641 S.E.2d 698, review dismissed, review denied, 361 N.C. 429, 648 S.E.2d 508 (2007).

When a county employee wrote to the board of county commissioners about the employee's experience working with the county medical director, when the board was considering whether to renew the director's contract, and recommended another person for the director's job and discussed the employee's interaction with the board regarding the board's decision-making process, the letter was a public record because it was undisputed that the letter was written by a county employee, who was required to work with the medical director, and was received by the board in connection with the board's decision regarding whom to hire as medical director, an independent county contractor. News Reporter Co. v. Columbus County, 184 N.C. App. 512, 646 S.E.2d 390 (2007).

Dismissal of the suit under the North Carolina Public Records Act, N.C. Gen. Stat. ch. 132, was proper, because the university campus police department was not subject to the Act, when campus police departments were not enumerated in the list of departments and agencies qualifying as a public law enforcement agency, and G.S. 74G-5(a) did not specifically charge the Attorney General with the custodianship of arrest or incident reports of campus police departments. Ochsner v. Elon Univ., 221 N.C. App. 167, 725 S.E.2d 914 (2012).

Court of appeals erred by concluding that the Public Records Act provided the legal basis for granting corporations' request for a copy of the Automated Criminal/Infraction System database and that G.S. 7A-109 was inapposite to an analysis of access to such records because G.S. 7A-109 controlled the request for the records. LexisNexis Risk Data Mgmt. v. N.C. Admin. Office of the Courts, 368 N.C. 180, 775 S.E.2d 651 (2015).

University administrators had to disclose results of student disciplinary proceedings, except violation dates, because (1) the Family Educational Rights and Privacy Act (FERPA) did not give the administrators absolute discretion over whether to disclose such information that FERPA did not protect from disclosure, and (2) FERPA did not expressly or implicitly pre-empt the Public Records Act. DTH Media Corp. v. Folt, 259 N.C. App. 61, 816 S.E.2d 518 (2018), aff'd, 374 N.C. 292, 841 S.E.2d 251, 2020 N.C. LEXIS 368 (2020).

What Must Be Made Available for Inspection. - In the absence of clear statutory exemption or exception, documents falling within the definition of "public records" in the Public Records Act must be made available for public inspection. News & Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992).

It is beyond argument that minutes of a city council's closed session are "public records" within the meaning of North Carolina's Public Records Law, G.S. 132-1 et seq. Boney Publrs., Inc. v. Burlington City Council, 151 N.C. App. 651, 566 S.E.2d 701, cert. denied, 356 N.C. 297, 571 S.E.2d 221 (2002).

Under G.S. 143-318.10, minutes of all official meetings, including closed sessions, are public records within meaning of Public Records Law, G.S. 132-1 et seq. Boney Publrs., Inc. v. Burlington City Council, 151 N.C. App. 651, 566 S.E.2d 701, cert. denied, 356 N.C. 297, 571 S.E.2d 221 (2002).

Although documents under the definition of "public records" of G.S. 132-1(a) of the Public Records Act, G.S. 132-1 et seq., were usually subject to disclosure, an exemption existed for public hospital personnel files under the clear and unambiguous language of G.S. 131E-257.2 of the Public Hospital Personnel Act, and "personnel files" was defined broadly in G.S. 131E-257.2(a); the interpretation of what information was to be disclosed from those files was based on statutory history, including changes made from predecessor language, as well as the legislature's intent to carve out a privacy niche for public hospital employees for all information regarding compensation except "current salary." Knight Publ'g Co. v. Charlotte-Mecklenburg Hosp. Auth., 172 N.C. App. 486, 616 S.E.2d 602, cert. denied, 360 N.C. 176, 626 S.E.2d 299 (2005).

In resolving a dispute as to whether certain records pertaining to clemency were subject to the North Carolina Public Records Law, the court noted that neither G.S. 147-16(a)(1) nor G.S. 147-21 included any provision specifying whether the records involved in the statutes were considered public records; thus, the court was unable to determine that the General Assembly, in exercising its constitutional authority under N.C. Const., Art. III, § 5(6), intended to provide that the application process for pardons was subject to the Public Records Law. News & Observer Publ'g Co. v. Easley, 182 N.C. App. 14, 641 S.E.2d 698, review dismissed, review denied, 361 N.C. 429, 648 S.E.2d 508 (2007).

When a county employee wrote to the board of county commissioners about the employee's experience working with the county medical director, when the board was considering whether to renew the director's contract, and recommended another person for the director's job and discussed the employee's interaction with the board regarding the board's decision-making process, the fact that the county manager chose to place the letter in the employee's personnel file had no bearing on whether the letter was exempt from public disclosure under G.S. 132-1 as a personnel record covered by G.S. 153A-98 because whether it was a personnel record depended on the nature of the document and not where it was filed, and an exemption on this basis would allow governmental officials to avoid public disclosure of a document by placing it in an employee's personnel file. News Reporter Co. v. Columbus County, 184 N.C. App. 512, 646 S.E.2d 390 (2007).

Parts of the letter to the board of county commissioners recommending a certain person for the medical director's job and discussing the employee's interaction with the board were subject to public disclosure under G.S. 132-1 because G.S. 153A-98(a), protecting certain employee information from public disclosure, did not protect all information "with respect to" an employee, as the information had to relate to an illustrative list of subjects arising out of the employment, and there was no basis for considering these parts of the letter to be "any information" gathered by the county "with respect to" the types of matters governed by G.S. 153A-98(a). News Reporter Co. v. Columbus County, 184 N.C. App. 512, 646 S.E.2d 390 (2007).

Automated Criminal/Infraction System (ACIS) database was subject to public disclosure because it fell squarely within the definition of a public record as an electronic data-processing record; once the clerks of court entered information from their criminal records into ACIS, the database became a new public record existing distinctly and separately from the individual criminal records from which it was created. LexisNexis Risk Data Mgmt. v. N.C. Admin. Office of the Courts, 232 N.C. App. 427, 754 S.E.2d 223 (2014).

Settlement documents in an action brought by a state agency were subject to disclosure under the North Carolina Public Records Act, G.S. 132-1 et seq., because (1) the documents were "public records" under G.S. 132-1(a), (2) the Act only exempted such documents in a medical malpractice action against a hospital or when sealed by a written court order containing specified findings, and (3) no exception could be implied. Jackson v. Charlotte Mecklenburg Hosp. Auth., 238 N.C. App. 351, 768 S.E.2d 23 (2014).

Trial court did not err in ordering that only certain portions of the minutes from the board of education's closed meeting were subject to disclosure under the Open Meetings Law and the Public Records Act because the trial court redacted the majority of the 45 pages of minutes as the redacted material contained personnel information related to the superintendent and other employees, discussions protected by the attorney-client privilege, and confidential student information; and, after reviewing the unredacted minutes, the appellate court concluded that the undisclosed portions were properly redacted by the trial court, except that the trial court correctly found that the minutes concerning a policy issue had to be disclosed to the public. Times News Publ. Co. v. Alamance-Burlington Bd. of Educ., 252 N.C. App. 247, 797 S.E.2d 375 (2017).

Chapter Contemplates Disclosure as Well as Storage. - A presumed legislative intent to mandate the extensive preservation of public records prescribed by this Chapter, with storage at public expense, but to which the public is denied access, is untenable. Preservation for its own sake, absent access, would be an absurdity. Advance Publications, Inc. v. City of Elizabeth City, 53 N.C. App. 504, 281 S.E.2d 69 (1981).

The phrase "pursuant to law or ordinance in connection with the transaction of public business" should include, in addition to those records required by law, those records that are kept in carrying out lawful duties. News & Observer Publishing Co. v. Wake County Hosp. Sys., 55 N.C. App. 1, 284 S.E.2d 542 (1981), cert. denied, 305 N.C. 302, 291 S.E.2d 151, 459 U.S. 803, 103 S. Ct. 26, 74 L. Ed. 2d 42 (1982).

No Deliberative Process Privilege Exception. - The North Carolina's Public Records Act contains no deliberative process privilege exception. Whether one should be made is a question for the legislature, not the court. News & Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992).

"Agency of North Carolina Government or Its Subdivisions". - The phrase "agency of North Carolina government or its subdivisions" in this section need be construed only upon the plain meaning of this section and in the context of the public records statutes. News & Observer Publishing Co. v. Wake County Hosp. Sys., 55 N.C. App. 1, 284 S.E.2d 542 (1981), cert. denied, 305 N.C. 302, 291 S.E.2d 151, 459 U.S. 803, 103 S. Ct. 26, 74 L. Ed. 2d 42 (1982).

Trial court did not err in holding that the records the newspaper sought, with limited exceptions, were public records that had to be made available by the town for public inspection and copying; the town could not assert that because the town attorneys, and not the town itself, possessed the records that the records were not public records, as the town attorneys were an agency or subdivision of the town, were public officers, and a ruling otherwise would mean that a town could give records to its town attorneys to shield what otherwise would be public records from disclosure. Womack Newspapers, Inc. v. Town of Kitty Hawk, 181 N.C. App. 1, 639 S.E.2d 96 (2007).

Cited in State v. Bellar, 16 N.C. App. 339, 192 S.E.2d 86 (1972); Carnahan v. Reed, 53 N.C. App. 589, 281 S.E.2d 408 (1981); Housing Auth. v. Montgomery, 55 N.C. App. 422, 286 S.E.2d 114 (1982); North Carolina State Bd. of Registration for Professional Eng'rs & Land Surveyors v. FTC, 615 F. Supp. 1155 (E.D.N.C. 1985); North Carolina Press Ass'n v. Spangler, 87 N.C. App. 169, 360 S.E.2d 138 (1987); News & Observer Publishing Co. v. Poole, 99 N.C. App. 352, 392 S.E.2d 775 (1990); North Carolina Elec. Membership Corp. v. North Carolina Dep't of Economic & Community Dev., 108 N.C. App. 711, 425 S.E.2d 440 (1993); Times-News Publishing Co. v. State, 124 N.C. App. 175, 476 S.E.2d 450 (1996), appeal dismissed, 345 N.C. 645, 483 S.E.2d 717 (1997); DTH Publishing Corp. v. University of N.C. 128 N.C. App. 534, 496 S.E.2d 8, cert. denied, 348 N.C. 496, 510 S.E.2d 382 (1998); State ex rel. Utilities Comm'n v. MCI Telecommunications Corp., 132 N.C. App. 625, 514 S.E.2d 276 (1999); Boney Publrs., Inc. v. Burlington City Council, 151 N.C. App. 651, 566 S.E.2d 701, cert. denied, 356 N.C. 297, 571 S.E.2d 221 (2002); In re Decision of the State Bd. of Elections v. N.C. Bd. of Elections, 153 N.C. App. 804, 570 S.E.2d 897 (2002), cert. denied, 356 N.C. 671, 577 S.E.2d 114 (2003); Cunningham v. Cannon, 187 N.C. App. 732, 654 S.E.2d 24 (2007), review denied, 362 N.C. 356, 661 S.E.2d 244 (2008); Woods v. Moses Cone Health Sys., 198 N.C. App. 120, 678 S.E.2d 787 (2009), review denied, 363 N.C. 813, 693 S.E.2d 353, LEXIS 105 (2010); In re Zahra Clare Baker Investigation, 220 N.C. App. 108, 727 S.E.2d 316 (2012); Dickson v. Rucho, 366 N.C. 332, 737 S.E.2d 362 (2013); Cline v. Hoke, 238 N.C. App. 16, 766 S.E.2d 861 (2014); State v. Ortiz, 238 N.C. App. 508, 768 S.E.2d 322 (2014); N.C. State Bd. of Dental Exam'rs v. FTC, 574 U.S. 494, 135 S. Ct. 1101, 191 L. Ed. 2d 35 (2015); Times News Publ'g Co. v. Alamance-Burlington Bd. of Educ., 242 N.C. App. 375, 774 S.E.2d 922 (2015); Brooksby v. N.C. Admin. Office of the Courts, 248 N.C. App. 471, 789 S.E.2d 540 (2016).

II. OPEN MEETINGS AND COURTS.

This Chapter Compared with the Open Meetings Law. - The Public Records Act (G.S. 132-1 et seq.) and the Open Meetings Law (G.S. 143-318.10) are discrete statutes, each designed to promote in a different way openness in government. There is no suggestion in either statute that an agency not subject to one is, ipso facto, exempt from the other. News & Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992).

The Public Records Law may apply to minutes from meetings of an agency exempt from the Open Meetings Law. News & Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992).

Open Courts Provision. - This statute only prohibits a court from restricting the publication of reports regarding matter presented "in open court"; thus, although court records may generally be public records under this section, a trial court may shield portions of court proceedings and records from public view subject to statutory and constitutional limitation. Virmani v. Presbyterian Health Servs. Corp., 127 N.C. App. 629, 493 S.E.2d 310 (1997), aff'd in part and rev'd in part on other grounds, 350 N.C. 449, 515 S.E.2d 675 (1999).

Separation agreement that required sealed court files and closed hearings on disputes over the separation to protect privacy for personal and financial affairs of the children violated the public policies of open judicial proceedings in N.C. Const., Art. I, § 18 and open court records in the State's Public Records Act, G.S. 132-1. France v. France, 209 N.C. App. 406, 705 S.E.2d 399 (2011).

Balance of Competing Interests. - In deciding whether to close court proceedings or seal court records, a court must balance the competing interests and policies at stake in light of the particular circumstances of the case but must give substantial weight to the presumption of open access. Virmani v. Presbyterian Health Servs. Corp., 127 N.C. App. 629, 493 S.E.2d 310 (1997), aff'd in part and rev'd in part on other grounds, 350 N.C. 449, 515 S.E.2d 675 (1999).

Judicial Application of Exception in Former G.S. 143-318.11(d). - Courts should ensure that the exception in former subsection (d) of G.S. 143-318.11 to the disclosure requirement should extend no further than necessary to protect ongoing efforts of a public body, respecting the policy against secrecy in government that underlies both the Public Records Act and Open Meetings Law. News & Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992).

III. APPLICATION.

Wake County Hospital System is an agency of the county under the North Carolina public records statutes. News & Observer Publishing Co. v. Wake County Hosp. Sys., 55 N.C. App. 1, 284 S.E.2d 542 (1981), cert. denied, 305 N.C. 302, 291 S.E.2d 151, 459 U.S. 803, 103 S. Ct. 26, 74 L. Ed. 2d 42 (1982).

By virtue of the definitions in G.S. 143-318.10(b) and G.S. 159-39(a), the Wake County Hospital System is a "public body" that must, by law, record settlement terms considered in executive sessions. The public has the right to know the terms of settlements made by the system in actions for wrongful terminations of its agreements, since the funds from which the settlements were paid must be considered the county's funds. News & Observer Publishing Co. v. Wake County Hosp. Sys., 55 N.C. App. 1, 284 S.E.2d 542 (1981), cert. denied, 305 N.C. 302, 291 S.E.2d 151, 459 U.S. 803, 103 S. Ct. 26, 74 L. Ed. 2d 42 (1982).

Documents filed as exhibits attached to plaintiff's complaint entered the public domain for purposes of the Public Records Act, and the public's right to inspect court records under G.S. 7A-109, and became "public records" once the complaint was filed with the clerk of the court, even though these exhibits would otherwise have been shielded by G.S. 131E-95(b) of the Hospital Licensure Act. Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 515 S.E.2d 675 (1999).

Criminal Investigatory Information. - Copies of recordings the plaintiff sought to obtain pursuant to this section were unquestionably gathered by city police department in the course of a criminal investigation and were part of the State's file in a pending criminal action; however plaintiff was precluded under Article 48 of ch. 15A, G.S. 15A-901 et seq. Piedmont Publishing Co. v. City of Winston-Salem, 334 N.C. 595, 434 S.E.2d 176 (1993).

Press was not entitled to unseal three search warrants related to a homicide investigation under the Public Records Act, G.S. 132-1 et seq., where release of the information would have undermined the ongoing investigation because the records were sealed pursuant to a court order, exempting them under G.S. 132-1.4(k). In re Search Warrants Issued in Connection with the Investigation into the Death of Nancy Cooper, 200 N.C. App. 180, 683 S.E.2d 418 (2009), review denied, 363 N.C. 855, 694 S.E.2d 201 (2010).

Trial Preparation Materials Not Subject To Inspection. - Trial court did not abuse its discretion in ruling that documents a city withheld from a landowner were trial preparation materials under the North Carolina Public Records Act, G.S. 132-1.9(b), and were not subject to inspection because the documents contained mental impressions, conclusions, opinions, or legal theories of city attorneys or other agents of the city in reasonable anticipation of litigation; at the hearing to compel production of public records, the city argued that the materials withheld all related to its research and its taking a look at legal strategies related to possible zoning enforcement, not with respect to any of the claims that the landowner suggested they could pursue against the city with respect to an administrative inspection. Wallace Farm, Inc. v. City of Charlotte, 203 N.C. App. 144, 689 S.E.2d 922, review denied, 364 N.C. 334, 701 S.E.2d 681, 2010 N.C. LEXIS 630 (2010).

S.B.I. records are not public records and access to them is not available under the Public Records Act. Access to S.B.I. records is controlled entirely by G.S. 114-15. News & Observer Publishing Co. v. State ex rel. Starling, 312 N.C. 276, 322 S.E.2d 133 (1984).

Information contained in research applications for projects involving animal experiments was subject to disclosure, where such information could be redacted, and release would not cause a "chilling effect" on research. S.E.T.A. Unc-Ch, Inc. v. Huffines, 101 N.C. App. 292, 399 S.E.2d 340 (1991).

Letter from Engineer Consulting for City. - A letter received by the manager of defendant-city from a consulting engineer whom defendant-city employed to inspect construction work on additions and modifications to its water treatment plant is a public record subject to disclosure. Advance Publications, Inc. v. City of Elizabeth City, 53 N.C. App. 504, 281 S.E.2d 69 (1981).

Work Product of Local Government Attorney not Protected from Disclosure - Language of G.S. 132-1(b) has been interpreted to only recognize an exception to the North Carolina Public Records Act in the face of a clear statutory exemption or exception to the Public Records Act; in other words, the Public Records Act grants public access to documents it defines as "public records," absent a specific statutory exemption. Therefore, because there was no statute specifically exempting from public access materials held by a local government attorney that qualified as work product, a city attorney's documents were not protected from disclosure as work product. McCormick v. Hanson Aggregates Southeast, Inc., 164 N.C. App. 459, 596 S.E.2d 431 (2004).

Records made by contractors and subcontractors (contractors) of the former North Carolina Low-Level Radioactive Waste Management Authority, kept by the contractors and not actually received by the Authority, are not public records, as defined under this section, until they are received by the Authority in the proper exercise of its discretion. Durham Herald Co. v. North Carolina Low-Level Radioactive Waste Mgt. Auth., 110 N.C. App. 607, 430 S.E.2d 441, cert. denied, 334 N.C. 619, 435 S.E.2d 334 (1993).

Application to Private Corporate Entity. - Though a housing authority was once a governmental agency, it was not subject to the North Carolina Open Meetings Law, G.S. 143-318.9 et seq., and the North Carolina Public Records Law, G.S. 132-1 et seq., because it was changed to a private corporation and only public entities were subject to the Public Records Law. Chatfield v. Wilmington Hous. Fin. & Dev., Inc., 166 N.C. App. 703, 603 S.E.2d 837 (2004), cert. denied, 359 N.C. 280, 609 S.E.2d 393 (2005).

As Related to Family Educational Rights and Privacy Act. - In enacting the Family Educational Rights and Privacy Act, Congress has not forbidden North Carolina's legislative body from taking action in the field of education where the disclosure of the result of a student disciplinary proceeding conducted at a public postsecondary educational institution which operates as an agency of North Carolina is mandated by the state's Public Records Act. DTH Media Corp. v. Folt, 374 N.C. 292, 841 S.E.2d 251 (2020), cert. denied, mot. granted, 141 S. Ct. 1126, 2021 U.S. LEXIS 401, 208 L. Ed. 2d 563 (U.S. 2021).

20 U.S.C.S. § 1232g(b)(6)(B) did not grant implied discretion to the public university to determine whether to release results of student disciplinary proceedings emanating from rape or sexual assault or misconduct charges in absence of language granting such; records request was limited to students already determined to have engaged in such misconduct, Family Educational Rights and Privacy Act specified that the records sought were subject to disclosure, and there was no conflict between the federal statute and the state Public Records Act. DTH Media Corp. v. Folt, 374 N.C. 292, 841 S.E.2d 251 (2020), cert. denied, mot. granted, 141 S. Ct. 1126, 2021 U.S. LEXIS 401, 208 L. Ed. 2d 563 (U.S. 2021).

Standing alone, a postsecondary educational institution possesses discretion to disclose, but when such a postsecondary educational institution is public, operating as an undisputed agency of North Carolina under the Public Records Act and therefore subject to comply with requests for public records when asserted, then nothing in 20 U.S.C.S. § 1232g(b)(6)(B) shall be construed to prohibit an institution of postsecondary education from disclosing the final results of any disciplinary proceeding conducted against a student. DTH Media Corp. v. Folt, 374 N.C. 292, 841 S.E.2d 251 (2020), cert. denied, mot. granted, 141 S. Ct. 1126, 2021 U.S. LEXIS 401, 208 L. Ed. 2d 563 (U.S. 2021).

Conflict preemption did not exist in the present case because compliance with both the Public Records Act and Family Educational Rights and Privacy Act was possible, and the Public Records Act does not stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress regarding the governance of education. DTH Media Corp. v. Folt, 374 N.C. 292, 841 S.E.2d 251 (2020), cert. denied, mot. granted, 141 S. Ct. 1126, 2021 U.S. LEXIS 401, 208 L. Ed. 2d 563 (U.S. 2021).

Dates of Disciplinary Offenses. - Dates of offenses which were requested by plaintiffs pursuant to the Public Records Act were not subject to disclosure under Family Educational Rights and Privacy Act; therefore, the public university was only required to disclose to plaintiffs, pursuant to the Public Records Act, the name of the student, the violation committed, and any sanction imposed by the university on that student upon the release of the final results of any disciplinary proceeding. DTH Media Corp. v. Folt, 374 N.C. 292, 841 S.E.2d 251 (2020), cert. denied, mot. granted, 141 S. Ct. 1126, 2021 U.S. LEXIS 401, 208 L. Ed. 2d 563 (U.S. 2021).

Opinions of Attorney General

North Carolina's Northeast Partnership is an "agency" within the meaning of subsection (a) of this section, and accordingly is fully subject to the Public Records Act; the Northeastern North Carolina Regional Economic Development Commission from which it emerged is an agency located administratively in the North Carolina Department of Commerce although it has attempted to remove itself from the Department. See opinion of Attorney General to Melanie Thompson, Fiscal Manager, North Carolina's Northeast Partnership, 1999 N.C.A.G. 9 (3/9/99).

Police Arrest and Disposition Records Subject to Public Examination. - See opinion of Attorney General to Mr. Samuel M. Moore, 41 N.C.A.G. 407 (1971).

Documents generated by the Department of Administration relating to an internal workplace assessment survey are public records. See opinion of Attorney General to Mr. R. Glen Peterson, General Counsel, N.C. Department of Administration, 1999 N.C.A.G. 5 (1/12/99).

A governmental entity is not required to provide the public a means to monitor its 800 megahertz radio communications as such a communication is not a public record. See opinion of Attorney General to Mr. J. Mark Payne, Johnston County Attorney, 2002 N.C. AG LEXIS 3 (1/22/02).

Textbook lists of state universities are public records. See opinion of Attorney General to Mr. J.D. Wright, North Carolina State University at Raleigh, 41 N.C.A.G. 199 (1971).

Applications for licensure as speech and language pathologists and audiologists are public records. See opinion of Attorney General to Mariana Newton, Phd., Chairman, Board of Examiners for Speech and Language Pathologists and Audiologists, 45 N.C.A.G. 188 (1976).

Municipal records and papers, such as budgets, bank statements, tax levies, utility accounts, minutes of meetings, etc., are public records. See opinion of Attorney General to Honorable R.L. Davis, 43 N.C.A.G. 274 (1973).

Licensure Procedures. - The application and other information obtained during the Private Protective Services Board's licensure procedure which are not otherwise exempt by law are public records subject to public inspection and examination under G.S. 132-6. See opinion of Attorney General to W. A. "Doc" Hoggard, III PPS Board Administrator Private Protective Services Board, 1997 N.C.A.G. 50 (8/15/97).

Sheriff's department investigative reports and memoranda concerning investigation of crimes are not public records within the sense of this Chapter and are not thereby subject to public inspection. Opinion of Attorney General to Honorable J. Hubert Haynes, 44 N.C.A.G. 340 (1975).

Copies of Forms Maintained by Law Enforcement Officers. - The copy of form HP-332 (affidavit form) maintained by the arresting officer which is completed when a person refuses to take a chemical test to determine alcoholic content of the blood is not a public record and subject to inspection. See opinion of Attorney General to Barbara Smith, Assistant Secretary, Department of Crime Control and Public Safety, 48 N.C.A.G. 63 (1978).

The copy of HP-332A (rights of person requested to take chemical test to determine alcoholic content of blood), maintained by arresting officer is not a public record and subject to inspection. See opinion of Attorney General to Barbara Smith, Assistant Secretary, Department of Crime Control and Public Safety, 48 N.C.A.G. 63 (1978).

The copy of the alcohol influence report (HP-327) which is maintained by the arresting officer and the copy of which is maintained at troop headquarters is not a public record and subject to inspection. See opinion of Attorney General to Barbara Smith, Assistant Secretary, Department of Crime Control and Public Safety, 48 N.C.A.G. 63 (1978).

The departmental copy of the N.C. uniform traffic ticket and complaint, which is submitted by a highway patrolman to the district first sergeant who transmits it to the Traffic Record Section of the Division of Motor Vehicles, is not a public record and subject to inspection during the time it is maintained at the patrol district headquarters. See opinion of Attorney General to Barbara Smith, Assistant Secretary, Department of Crime Control and Public Safety, 48 N.C.A.G. 63 (1978).

The enforcement division copy of the N.C. uniform traffic ticket and complaint, which is maintained by the officer issuing the complaint and includes his notes and other evidence, is not a public record and subject to inspection prior to trial of the offense charged in the complaint. See opinion of Attorney General to Barbara Smith, Assistant Secretary, Department of Crime Control and Public Safety, 48 N.C.A.G. 63 (1978).

The enforcement division copy of the N.C. uniform traffic ticket and complaint is not a public record and subject to inspection in the patrol district headquarters after the trial of the offense charged in the complaint. See opinion of Attorney General to Barbara Smith, Assistant Secretary, Department of Crime Control and Public Safety, 48 N.C.A.G. 63 (1978).

The chemical test operator's log (DHS-2069) is not a public record and subject to inspection while in the possession of the chemical test operator. See opinion of Attorney General to Barbara Smith, Assistant Secretary, Department of Crime Control and Public Safety, 48 N.C.A.G. 63 (1978).

The breathalyzer operational checklist (DHS-2012) which is completed and maintained by the breathalyzer operator is not a public record and subject to inspection. See opinion of Attorney General to Barbara Smith, Assistant Secretary, Department of Crime Control and Public Safety, 48 N.C.A.G. 63 (1978).

Qualification of New Members. - If a person elected to the board of education who is also employed by the board does not resign before the second Monday in December following the election due to his continued employment with the board, a vacancy on the board will occur on that date. See opinion of Attorney General to L. Wardlaw Lamar, Valentine, Adams, and Lamar, L.L.P., 2004 N.C. AG LEXIS 13 (12/2/04).

Provisional Voters. - Ordinarily, applications to vote provisionally are viewed as public records which must be disclosed pursuant to this Chapter because these documents are separate from ballots and there are a sufficient quantity of provisional ballots so that no vote could be attributed to any particular provisional voter. However, when there is only one provisional voter, that voter has an overriding and personal right to a secret ballot under Article VI, Section 5 of the North Carolina Constitution, and a County Board of Elections is prohibited from disclosing any information that would identify the provisional voter. See opinion of Attorney General to Mr. Stephen T. Gheen, Chairman Gaston County Board of Elections, 1997 N.C.A.G. 67 (11/6/97).

Contracts Between Universities and Coaches - Contracts under which institutions employ coaches and contracts between the institutions and certain vendors or suppliers which involve or concern those coaches or other documents related to those contracts are public records. See opinion of Attorney General to Charles J. Waldrup, Associate Vice President for Legal Affairs, University of North Carolina, 2003 N.C.A.G. 2 (2/6/03).

Applicability of Secrecy Law to Tax Review Board Members. - Members of the Tax Review Board and staff must comply with both the confidentiality obligations of G.S. 105-259 (b) section and the obligations for disclosure set forth in the Public Records Law with respect to the release of records and other information; the obligation does not vary based upon whether the Board receives a request for information prior to or after publication of an order by the Board. See opinion of Attorney General to The Honorable Richard H. Moore, Treasurer, State of North Carolina, 2004 N.C.A.G. 10 (10/12/04).

Release of Department of Motor Vehicle Records. - The Department of Motor Vehicles is required by the Drivers Privacy Protection Act, 18 U.S.C. § 2721 et seq., to redact "personal information" and "highly restricted personal information" from documents, such as accident reports, provided to the public. Otherwise, the requirements of the Public Records Act, G.S. 132-1 et seq., should be complied with by DMV and local law enforcement agencies. Motor vehicle registration information provided by DMV to local taxing authorities should also be provided upon request in accordance with the Public Records Act. See opinion of Attorney General to Mr. George Tatum, Commissioner, North Carolina Division of Motor Vehicles, 2005 N.C.A.G. 1 (02/09/05).

Investment Information. - Portfolio company information used in investments meets the tests in Combs & Assocs. v. Kennedy, 147 N.C. App. 362, 369-70, 555 S.E.2d 634, 640 (2001) and in Wilmington Star News v. New Hanover Regional Medical Center, 125 N.C. App. 174, 480 S.E.2d 53, 56, appeal dismissed, 346 N.C. 557, 488 S.E.2d 826 (1997) of "trade secret" as defined by G.S. 66-152(3); however, basic fund information and management fee information are not trade secrets and are not exempt from disclosure under the Public Records Act, G.S. 132-1 et seq. See opinion of Attorney General to Honorable Richard H. Moore, State Treasurer, 2006 N.C.A.G. 2 (06/06/06).

§ 132-1.1. Confidential communications by legal counsel to public board or agency; State tax information; public enterprise billing information; Address Confidentiality Program information.

Confidential Communications. - Public records, as defined in G.S. 132-1, shall not include written communications (and copies thereof) to any public board, council, commission or other governmental body of the State or of any county, municipality or other political subdivision or unit of government, made within the scope of the attorney-client relationship by any attorney-at-law serving any such governmental body, concerning any claim against or on behalf of the governmental body or the governmental entity for which such body acts, or concerning the prosecution, defense, settlement or litigation of any judicial action, or any administrative or other type of proceeding to which the governmental body is a party or by which it is or may be directly affected. Such written communication and copies thereof shall not be open to public inspection, examination or copying unless specifically made public by the governmental body receiving such written communications; provided, however, that such written communications and copies thereof shall become public records as defined in G.S. 132-1 three years from the date such communication was received by such public board, council, commission or other governmental body.
State and Local Tax Information. - Tax information may not be disclosed except as provided in G.S. 105-259. As used in this subsection, "tax information" has the same meaning as in G.S. 105-259. Local tax records that contain information about a taxpayer's income or receipts may not be disclosed except as provided in G.S. 153A-148.1 and G.S. 160A-208.1.
Public Enterprise Billing Information. - Billing information compiled and maintained by a city or county or other public entity providing utility services in connection with the ownership or operation of a public enterprise, excluding airports, is not a public record as defined in G.S. 132-1. Nothing contained herein is intended to limit public disclosure by a city or county of billing information:
1. That the city or county determines will be useful or necessary to assist bond counsel, bond underwriters, underwriters' counsel, rating agencies or investors or potential investors in making informed decisions regarding bonds or other obligations incurred or to be incurred with respect to the public enterprise;
2. That is necessary to assist the city, county, State, or public enterprise to maintain the integrity and quality of services it provides; or
3. That is necessary to assist law enforcement, public safety, fire protection, rescue, emergency management, or judicial officers in the performance of their duties.
Address Confidentiality Program Information. - The actual address and telephone number of a program participant in the Address Confidentiality Program established under Chapter 15C of the General Statutes is not a public record within the meaning of Chapter 132. The actual address and telephone number of a program participant may not be disclosed except as provided in Chapter 15C of the General Statutes.
Controlled Substances Reporting System Information. - Information compiled or maintained in the Controlled Substances Reporting System established under Article 5E of Chapter 90 of the General Statutes is not a public record as defined in G.S. 132-1 and may be released only as provided under Article 5E of Chapter 90 of the General Statutes.
Personally Identifiable Admissions Information. - Records maintained by The University of North Carolina or any constituent institution, or by the Community Colleges System Office or any community college, which contain personally identifiable information from or about an applicant for admission to one or more constituent institutions or to one or more community colleges shall be confidential and shall not be subject to public disclosure pursuant to G.S. 132-6(a). Notwithstanding the preceding sentence, any letter of recommendation or record containing a communication from an elected official to The University of North Carolina, any of its constituent institutions, or to a community college, concerning an applicant for admission who has not enrolled as a student shall be considered a public record subject to disclosure pursuant to G.S. 132-6(a). Nothing in this subsection is intended to limit the disclosure of public records that do not contain personally identifiable information, including aggregated data, guidelines, instructions, summaries, or reports that do not contain personally identifiable information or from which it is feasible to redact any personally identifiable information that the record contains. As used in this subsection, the term "community college" is as defined in G.S. 115D-2(2), the term "constituent institution" is as defined in G.S. 116-2(4), and the term "Community Colleges System Office" is as defined in G.S. 115D-3.
Public Agency Proprietary Computer Code. - Proprietary computer code written by and for use by an agency of North Carolina government or its subdivisions is not a public record as defined in G.S. 132-1.
Employment Security Information. - Confidential information obtained, compiled, or maintained by the Division of Employment Security may not be disclosed except as provided in G.S. 96-4. As used in this subsection, the term "confidential information" has the same meaning as in G.S. 96-4(x).

As used herein, "billing information" means any record or information, in whatever form, compiled or maintained with respect to individual customers by any owner or operator of a public enterprise, as defined in G.S. 160A-311, excluding subdivision (9), and G.S. 153A-274, excluding subdivision (4), or other public entity providing utility services, excluding airports, relating to services it provides or will provide to the customer.

History

(1975, c. 662; 1993, c. 485, s. 38; 1995 (Reg. Sess., 1996), c. 646, s. 21; 2001-473, s. 1; 2002-171, s. 7; 2003-287, s. 1; 2005-276, s. 10.36(b); 2007-372, s. 2; 2013-96, s. 1; 2014-117, s. 2.)

Cross References. - For the Address Confidentiality Program, see G.S. 15C-1 et seq.

Editor's Note. - Session Laws 2007-372, s. 2, which added subsection (f), was effective August 19, 2007, and applicable to public records existing before, on, or after that date.

Session Laws 2013-96, s. 2, made the addition of subsection (g) by Session Laws 2013-96, s. 1, applicable to public records existing before, on, or after June 12, 2013.

Session Laws 2014-117, s. 3, provides: "The Department of Commerce, Division of Employment Security, shall immediately take any action necessary to implement this act. On or before September 1, 2014, the Division of Employment Security shall report to the Joint Legislative Oversight Committee on Unemployment Insurance on the status of the implementation of this act."

Effect of Amendments. - Session Laws 2005-276, s. 10.36(b), effective January 1, 2006, added subsection (e).

Session Laws 2007-372, s. 2, effective August 19, 2007, and applicable to public records existing before, on, or after that date, added subsection (f).

Session Laws 2013-96, s. 1, effective June 12, 2013, added subsection (g). For applicability, see Editor's note.

Session Laws 2014-117, s. 2, effective August 25, 2014, added subsection (h).

Legal Periodicals. - For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).

CASE NOTES

Only written communications to a public agency by its attorney are excepted from public inspection under the circumstances set out in this section. News & Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992).

Records of Legislators Regarding Redistricting. - G.S. 120-133 does not waive the right of legislators to assert the attorney-client privilege or work-product doctrine in litigation challenging a redistricting plan because: (1) it does not contain an explicit waiver of those common law doctrines; (2) it is included in Ch. 120, Art. 17 of the General Statutes; and (3) in contrast to the North Carolina Public Records Act, G.S. 132-1.1(a), which is designed to disclose documentary material of State government agencies or subdivisions to facilitate public inspection and examination, Art. 17 has been enacted to protect legislative communications from disclosure so as to preserve the integrity of the legislative process. Dickson v. Rucho, 366 N.C. 332, 737 S.E.2d 362 (2013).

Commission Minutes May Have Been Protected. - Trial court erred in not considering whether the minutes of a Commission formed to investigate improprieties in a university athletic program were protected by the Public Records Act attorney-client privilege provided in this section. News & Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992).

Disclosure of Settlement Documents. - Settlement documents in an action brought by a state agency were not exempt from disclosure under G.S. 132-1.3 because the statute had to be construed consistently with statutes giving public access to attorney communications on settlements and disclosure under G.S. 143-318.11(a)(3). Jackson v. Charlotte Mecklenburg Hosp. Auth., 238 N.C. App. 351, 768 S.E.2d 23 (2014).

Because the portions of the documents a city was attempting to protect via the attorney-client privilege were more than three years old, the city lost the privilege by operation of the statute. MCI Constr., LLC v. Hazen & Sawyer, P.C., 213 F.R.D. 268 (M.D.N.C. 2003).

Limited attorney-client privilege - Statutory protection for privileged information is more narrow than the traditional common law attorney-client privilege. According to G.S. 132-1.1(a), the North Carolina Public Records Act provides only one exception (based on privilege) to its mandate of public access to public records: written statements to a public agency, by any attorney serving the government agency, made within the scope of the attorney-client privilege, and involving a claim, defense, settlement, litigation, or administrative proceeding. McCormick v. Hanson Aggregates Southeast, Inc., 164 N.C. App. 459, 596 S.E.2d 431 (2004).

Cited in News & Observer Publishing Co. v. Wake County Hosp. Sys., 55 N.C. App. 1, 284 S.E.2d 542 (1981); North Carolina Press Ass'n v. Spangler, 87 N.C. App. 169, 360 S.E.2d 138 (1987); State ex rel. Utilities Comm'n v. MCI Telecommunications Corp., 132 N.C. App. 625, 514 S.E.2d 276 (1999).

Opinions of Attorney General

Attorney-Client Communications to City on Personnel Matters. - Written attorney-client communications to a city (including the city manager and city council) on specific personnel matters related to an employee that are more than three years old, and which are confidential under G.S. 160A-168(a), are not public records; by its specific terms, G.S. 160A-168(a) supersedes the requirement in G.S. 132-1.1 that privileged attorney-client communications must be disclosed three years after they are received. See opinion of Attorney General to Mr. Grady Joseph Wheeler, Jr., Esq., Attorney, 2001 N.C. AG LEXIS 15 (5/30/2001).

§ 132-1.2. Confidential information.

Nothing in this Chapter shall be construed to require or authorize a public agency or its subdivision to disclose any information that:

Meets all of the following conditions:
1. Constitutes a "trade secret" as defined in G.S. 66-152(3).
2. Is the property of a private "person" as defined in G.S. 66-152(2).
3. Is disclosed or furnished to the public agency in connection with the owner's performance of a public contract or in connection with a bid, application, proposal, industrial development project, or in compliance with laws, regulations, rules, or ordinances of the United States, the State, or political subdivisions of the State.
4. Is designated or indicated as "confidential" or as a "trade secret" at the time of its initial disclosure to the public agency.
Reveals an account number for electronic payment as defined in G.S. 147-86.20 and obtained pursuant to Articles 6A or 6B of Chapter 147 of the General Statutes or G.S. 159-32.1.
Reveals a document, file number, password, or any other information maintained by the Secretary of State pursuant to Article 21 of Chapter 130A of the General Statutes.
Reveals the electronically captured image of an individual's signature, date of birth, drivers license number, or a portion of an individual's social security number if the agency has those items because they are on a voter registration document.
Reveals the seal of a licensed design professional who is licensed under Chapter 83A or Chapter 89C of the General Statutes that has been submitted for project approval to (i) a municipality under Part 5 of Article 19 of Chapter 160A of the General Statutes or (ii) to a county under Part 4 of Article 18 of Chapter 153A of the General Statutes. Notwithstanding this exemption, a municipality or county that receives a request for a document submitted for project approval that contains the seal of a licensed design professional who is licensed under Chapter 83A or Chapter 89C of the General Statutes and that is otherwise a public record by G.S. 132-1 shall allow a copy of the document without the seal of the licensed design professional to be examined and copied, consistent with any rules adopted by the licensing board under Chapter 83A or Chapter 89C of the General Statutes regarding an unsealed document.
Reveals documents related to the federal government's process to determine closure or realignment of military installations until a final decision has been made by the federal government in that process.
Reveals name, address, qualifications, and other identifying information of any person or entity that manufactures, compounds, prepares, prescribes, dispenses, supplies, or administers the drugs or supplies obtained for any purpose authorized by Article 19 of Chapter 15 of the General Statutes.
Reveals the name, address, or other identifying information of any individual winning more than fifty million dollars ($50,000,000) in a lottery game who requests to remain anonymous for 90 days, as provided in G.S. 18C-132(j1).
Reveals proprietary design work or work product included in a proposal that is submitted to the Department of Transportation for consideration, or any Department intra-agency communications related to the review of a proposal, during a competitive bid process. For the purposes of this subdivision, the competitive bid process is completed upon contract award. Proprietary design work, work product, or intra-agency communications that are otherwise public records pursuant to G.S. 132-1 are no longer confidential and subject to disclosure upon contract award.

History

(1989, c. 269; 1991, c. 745, s. 3; 1999-434, s. 7; 2001-455, s. 2; 2001-513, s. 30(b); 2003-226, s. 5; 2004-127, s. 17(b); 2009-346, s. 1; 2014-79, s. 8; 2015-198, s. 6; 2019-142, s. 6; 2019-156, s. 3.)

Editor's Note. - Session Laws 2003-226, s. 1, provides: "The purpose of this act is to ensure that the State of North Carolina has a system for all North Carolina elections that complies with the requirements for federal elections set forth in the federal Help America Vote Act of 2002, Public Law 107-252, 116 Stat. 1666 (2002), codified at 42 U.S.C. §§ 15481-15485.

"The General Assembly finds that the education and training of election officials as required by G.S. 163-82.34 has met and continues to meet the mandate for the education and training of precinct officials and other election officials in section 254(a)(3) of the Help America Vote Act of 2002. The General Assembly further finds that the establishment, development, and continued operation of the statewide list maintenance program for voter registration set forth in G.S. 163-82.14 has met and continues to meet the mandates of section 303(a)(2) of the Help America Vote Act of 2002.

"In certain other areas of the election statutes and other laws, the General Assembly finds that the statutes must be amended to comply with the Help America Vote Act."

Session Laws 2015-198, s. 7, is a severability clause.

Session Laws 2019-142, s. 6, and Session Laws 2019-156, s. 3, each enacted a new subdivision (8). At the direction of the Reviser of Statutes, the subsection added by Session Laws 2019-156, s. 3, was redesignated as subdivision (9).

Effect of Amendments. - Session Laws 2004-127, s. 17.(b), effective June 1, 2005, inserted "date of birth" in subdivision (4).

Session Laws 2009-346, s. 1, effective October 1, 2009, added subdivision (5).

Session Laws 2014-79, s. 8, effective July 22, 2014, added subdivision (6).

Session Laws 2015-198, s. 6, effective August 5, 2015, added subdivision (7).

Session Laws 2019-142, s. 6, effective July 19, 2019, added subdivision (8).

Session Laws 2019-156, s. 3, effective July 22, 2019, added subdivision (8). For redesignation of subdivision, see editor's note.

CASE NOTES

Private Corporation Classified as Public Agency. - Private corporations can be classified as a public agency for the purposes of this section; the critical inquiry is whether the corporation's independent authority is overshadowed by the governmental control of that corporation. State ex rel. Utilities Comm'n v. MCI Telecommunications Corp., 132 N.C. App. 625, 514 S.E.2d 276 (1999).

Public Utilities as Private Persons. - Telephone service providers were "private persons" under this section for purposes of their claim that information filed with an agency constituted "trade secrets," even though providers were public utilities subject to fair regulation, since such regulation was not comprehensive and did not overshadow independent authority exercised by providers over operation of their own businesses. State ex rel. Utilities Comm'n v. MCI Telecommunications Corp., 132 N.C. App. 625, 514 S.E.2d 276 (1999).

The addition of the language "or indicated" acts to clarify the otherwise ambiguous word "designated." As such, any application of this section either before or after 1991, should interpret the word "designated" as meaning "designated or indicated." North Carolina Elec. Membership Corp. v. North Carolina Dep't of Economic & Community Dev., 108 N.C. App. 711, 425 S.E.2d 440 (1993).

Information Held Confidential. - Documents containing valuable business information such as projections by a cooperative electric membership corporation of electric rates for sales to its members and its methodologies for forecasting such price information, which was alleged to be of actual value to its competitors and would cause irreparable competitive harm to the corporation, were protected from disclosure by injunction under this Act. North Carolina Elec. Membership Corp. v. North Carolina Dep't of Economic & Community Dev., 108 N.C. App. 711, 425 S.E.2d 440 (1993).

Price Lists in Contract Between Hospital and HMO. - Where price lists in a contract between a public hospital and a private HMO are not property of a private person within the meaning of this section, they are not trade secrets as defined by G.S. 66-152(3) and are subject to disclosure under the North Carolina Public Records Act, pursuant to G.S. 132-1 et seq. Wilmington Star-News, Inc. v. New Hanover Regional Medical Ctr., Inc., 125 N.C. App. 174, 480 S.E.2d 53, appeal dismissed, 346 N.C. 557, 488 S.E.2d 826 (1997).

Factors in Determining Whether Information Is Trade Secret. - Proper factors to consider in determining whether information is a trade secret are: (1) the extent to which it is known outside the business; (2) the extent to which it is known to employees and others involved in the business; (3) the extent of measures taken to guard its secrecy; (4) its value to the business and competitors; (5) the amount of money or effort expended in its development; and (6) the ease or difficulty with which it could properly be acquired or duplicated by others. State ex rel. Utilities Comm'n v. MCI Telecommunications Corp., 132 N.C. App. 625, 514 S.E.2d 276 (1999).

Applied in S.E.T.A. UNC-CH, Inc. v. Huffines, 107 N.C. App. 440, 420 S.E.2d 674 (1992).

Opinions of Attorney General

Information Relating to State's Investments. - Basic fund information and management fee information are not trade secrets and are not exempt from disclosure under the Public Records Act. Review of case law shows that portfolio company information meets tests of "trade secret" as defined by G.S. 66-152(3). See opinion of Attorney General to The Honorable Richard H. Moore, State Treasurer, Department of State Treasurer, 2006 N.C. AG LEXIS 2 (6/6/06).

§ 132-1.3. Settlements made by or on behalf of public agencies, public officials, or public employees; public records.

Public records, as defined in G.S. 132-1, shall include all settlement documents in any suit, administrative proceeding or arbitration instituted against any agency of North Carolina government or its subdivisions, as defined in G.S. 132-1, in connection with or arising out of such agency's official actions, duties or responsibilities, except in an action for medical malpractice against a hospital facility. No agency of North Carolina government or its subdivisions, nor any counsel, insurance company or other representative acting on behalf of such agency, shall approve, accept or enter into any settlement of any such suit, arbitration or proceeding if the settlement provides that its terms and conditions shall be confidential, except in an action for medical malpractice against a hospital facility. No settlement document sealed under subsection (b) of this section shall be open for public inspection.
No judge, administrative judge or administrative hearing officer of this State, nor any board or commission, nor any arbitrator appointed pursuant to the laws of North Carolina, shall order or permit the sealing of any settlement document in any proceeding described herein except on the basis of a written order concluding that (1) the presumption of openness is overcome by an overriding interest and (2) that such overriding interest cannot be protected by any measure short of sealing the settlement. Such order shall articulate the overriding interest and shall include findings of fact that are sufficiently specific to permit a reviewing court to determine whether the order was proper.
Except for confidential communications as provided in G.S. 132-1.1, the term "settlement documents," as used herein, shall include all documents which reflect, or which are made or utilized in connection with, the terms and conditions upon which any proceedings described in this section are compromised, settled, terminated or dismissed, including but not limited to correspondence, settlement agreements, consent orders, checks, and bank drafts.

History

(1989, c. 326.)

CASE NOTES

Disclosure of Settlement Documents. - Settlement documents in an action brought by a state agency were subject to disclosure under the North Carolina Public Records Act, G.S. 132-1 et seq., because (1) the documents were "public records" under G.S. 132-1(a), (2) the Act only exempted such documents in a medical malpractice action against a hospital or when sealed by a written court order containing specified findings, and (3) no exception could be implied. Jackson v. Charlotte Mecklenburg Hosp. Auth., 238 N.C. App. 351, 768 S.E.2d 23 (2014).

Settlement documents in an action brought by a state agency were not exempt from disclosure under G.S. 132-1.3 because subsequently enacted G.S. 114-2.4A showed the legislature intended to make such documents public records. Jackson v. Charlotte Mecklenburg Hosp. Auth., 238 N.C. App. 351, 768 S.E.2d 23 (2014).

Settlement documents in an action brought by a state agency were not exempt from disclosure under G.S. 132-1.3 because the statute had to be construed consistently with statutes giving public access to attorney communications on settlements and disclosure under G.S. 143-318.11(a)(3). Jackson v. Charlotte Mecklenburg Hosp. Auth., 238 N.C. App. 351, 768 S.E.2d 23 (2014).

Opinions of Attorney General

Settlement Resulting from Investigation of Sheriff - A conciliation agreement between an EEOC claimant and a county board of commissioners, resulting from an investigation of the sheriff and involving the appropriation of over $21,000.00, should be made available to the public. See opinion of Attorney General Mr. Charles L. Revelle, III, Assistant Hertford County Attorney, 1998 N.C.A.G. 14 (3/4/98).

Settlement Agreement Not Confidential. - Only medical malpractice settlements in which the State is a party are exempt from disclosure; a settlement agreement, not involving medical malpractice, between a doctor and a State hospital, even one purporting to keep the settlement or related matters confidential, must be released to the requestor in its unredacted form, with the exception of information from the doctor's personnel file which was first gathered by the hospital. See opinion of Attorney General to Mr. Fred M. Carmichael Summrell, Sugg, Carmichael & Ashton, P.A., 1997 N.C.A.G. 68 (11/26/97).

§ 132-1.3A. The University of North Carolina athletic conference communications and other documentary materials; public records.

Public records, as defined in G.S. 132-1, shall include all documents, papers, letters, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics, in the possession of The University of North Carolina or any of its constituent institutions related to membership in or communication with the National Collegiate Athletic Association (NCAA), the Atlantic Coast Conference or any other athletic conference in any division of the NCAA, or any other collegiate sports association or organization.

History

(2017-175, s. 1.)

§ 132-1.4. Criminal investigations; intelligence information records; Innocence Inquiry Commission records.

Records of criminal investigations conducted by public law enforcement agencies, records of criminal intelligence information compiled by public law enforcement agencies, and records of investigations conducted by the North Carolina Innocence Inquiry Commission, are not public records as defined by G.S. 132-1. Records of criminal investigations conducted by public law enforcement agencies or records of criminal intelligence information may be released by order of a court of competent jurisdiction.
As used in this section:
1. "Records of criminal investigations" means all records or any information that pertains to a person or group of persons that is compiled by public law enforcement agencies for the purpose of attempting to prevent or solve violations of the law, including information derived from witnesses, laboratory tests, surveillance, investigators, confidential informants, photographs, and measurements. The term also includes any records, worksheets, reports, or analyses prepared or conducted by the North Carolina State Crime Laboratory at the request of any public law enforcement agency in connection with a criminal investigation.
2. "Records of criminal intelligence information" means records or information that pertain to a person or group of persons that is compiled by a public law enforcement agency in an effort to anticipate, prevent, or monitor possible violations of the law.
3. "Public law enforcement agency" means a municipal police department, a county police department, a sheriff's department, a company police agency commissioned by the Attorney General pursuant to G.S. 74E-1, et seq., and any State or local agency, force, department, or unit responsible for investigating, preventing, or solving violations of the law.
4. "Violations of the law" means crimes and offenses that are prosecutable in the criminal courts in this State or the United States and infractions as defined in G.S. 14-3.1.
5. "Complaining witness" means an alleged victim or other person who reports a violation or apparent violation of the law to a public law enforcement agency.
Notwithstanding the provisions of this section, and unless otherwise prohibited by law, the following information shall be public records within the meaning of G.S. 132-1.
1. The time, date, location, and nature of a violation or apparent violation of the law reported to a public law enforcement agency.
2. The name, sex, age, address, employment, and alleged violation of law of a person arrested, charged, or indicted.
3. The circumstances surrounding an arrest, including the time and place of the arrest, whether the arrest involved resistance, possession or use of weapons, or pursuit, and a description of any items seized in connection with the arrest.
4. The contents of "911" and other emergency telephone calls received by or on behalf of public law enforcement agencies, except for such contents that reveal the natural voice, name, address, telephone number, or other information that may identify the caller, victim, or witness. In order to protect the identity of the complaining witness, the contents of "911" and other emergency telephone calls may be released pursuant to this section in the form of a written transcript or altered voice reproduction; provided that the original shall be provided under process to be used as evidence in any relevant civil or criminal proceeding.
5. The contents of communications between or among employees of public law enforcement agencies that are broadcast over the public airways.
6. The name, sex, age, and address of a complaining witness.
A public law enforcement agency shall temporarily withhold the name or address of a complaining witness if release of the information is reasonably likely to pose a threat to the mental health, physical health, or personal safety of the complaining witness or materially compromise a continuing or future criminal investigation or criminal intelligence operation. Information temporarily withheld under this subsection shall be made available for release to the public in accordance with G.S. 132-6 as soon as the circumstances that justify withholding it cease to exist. Any person denied access to information withheld under this subsection may apply to a court of competent jurisdiction for an order compelling disclosure of the information. In such action, the court shall balance the interests of the public in disclosure against the interests of the law enforcement agency and the alleged victim in withholding the information. Actions brought pursuant to this subsection shall be set down for immediate hearing, and subsequent proceedings in such actions shall be accorded priority by the trial and appellate courts.
If a public law enforcement agency believes that release of information that is a public record under subdivisions (c)(1) through (c)(5) of this section will jeopardize the right of the State to prosecute a defendant or the right of a defendant to receive a fair trial or will undermine an ongoing or future investigation, it may seek an order from a court of competent jurisdiction to prevent disclosure of the information. In such action the law enforcement agency shall have the burden of showing by a preponderance of the evidence that disclosure of the information in question will jeopardize the right of the State to prosecute a defendant or the right of a defendant to receive a fair trial or will undermine an ongoing or future investigation. Actions brought pursuant to this subsection shall be set down for immediate hearing, and subsequent proceedings in such actions shall be accorded priority by the trial and appellate courts.
Nothing 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 from permitting the inspection, examination, or copying of such public record in compliance with G.S. 132-6. The use of a public record in connection with a criminal investigation or the gathering of criminal intelligence shall not affect its status as a public record.
Disclosure of records of criminal investigations and criminal intelligence information that have been transmitted to a district attorney or other attorney authorized to prosecute a violation of law shall be governed by this section and Chapter 15A of the General Statutes.
Nothing in this section shall be construed as requiring law enforcement agencies to disclose the following:
1. Information that would not be required to be disclosed under Chapter 15A of the General Statutes; or
2. Information that is reasonably likely to identify a confidential informant.
Law enforcement agencies shall not be required to maintain any tape recordings of "911" or other communications for more than 30 days from the time of the call, unless a court of competent jurisdiction orders a portion sealed.
When information that is not a public record under the provisions of this section is deleted from a document, tape recording, or other record, the law enforcement agency shall make clear that a deletion has been made. Nothing in this subsection shall authorize the destruction of the original record.
The following court records are public records and may be withheld only when sealed by court order: arrest and search warrants that have been returned by law enforcement agencies, indictments, criminal summons, and nontestimonial identification orders.
Records of investigations of alleged child abuse shall be governed by Article 29 of Chapter 7B of the General Statutes.

History

(1993, c. 461, s. 1; 1998-202, s. 13(jj); 2006-184, s. 7; 2010-171, s. 5; 2011-321, s. 1; 2013-360, s. 17.6(o).)

Editor's Note. - Session Laws 2010-171, s. 5, amended Session Laws 2006-184, s. 12, by repealing the applicability language that made the amendment of this section by Session Laws 2006-184, s. 7, which added "Innocence Inquiry Commission records" at the end of the section catchline, and, in the first sentence of subsection (a), substituted "agencies" for "agencies or" near the beginning and inserted "and records of investigations conducted by the North Carolina Innocence Inquiry Commission" and made minor punctuation changes, applicable to claims of factual innocence filed on or before December 31, 2010.

Effect of Amendments. - Session Laws 2011-321, s. 1, effective June 27, 2011, in subdivision (c)(4), inserted "natural voice" in the first sentence, and added the last sentence.

Session Laws 2013-360, s. 17.6(o), effective July 1, 2013, added the last sentence in subdivision (b)(1).

Legal Periodicals. - For comment, "You Can't Always Get What You Want: A Look at North Carolina's Public Records Law," see 72 N.C.L. Rev. 1527 (1994).

CASE NOTES

City attorney's office qualifies as public law enforcement agency - As the City Attorney's Office for the City of Raleigh was responsible for investigating, preventing, and solving zoning violations, it qualified as a "public law enforcement agency" under G.S. 132- 1.4(b)(3); any organizational unit within a county or city that is responsible for enforcement of a statute, ordinance, or regulation that carries misdemeanor or infraction penalties is capable of generating records that are covered by the statute. McCormick v. Hanson Aggregates Southeast, Inc., 164 N.C. App. 459, 596 S.E.2d 431 (2004).

University Campus Police. - Dismissal of the suit under the North Carolina Public Records Act, N.C. Gen. Stat. ch. 132, was proper, because the university campus police department was not subject to the Act, when campus police departments were not enumerated in the list of departments and agencies qualifying as a public law enforcement agency, and G.S. 74G-5(a) did not specifically charge the Attorney General with the custodianship of arrest or incident reports of campus police departments. Ochsner v. Elon Univ., 221 N.C. App. 167, 725 S.E.2d 914 (2012).

Continuing Investigation - Trial court ordered certain records withheld by a city attorney on the basis of G.S. 132-1.4 be produced because the statute of limitations for prosecuting a misdemeanor had expired. On appeal, the court agreed with the city attorney that the trial court erred in adopting a straight-line rule through the application of two-year statute of limitations for misdemeanors; in light of the broad scope and purposes behind the criminal investigation exception, the trial court should have conducted an in camera review, as requested by the city attorney, to properly determine, based on the purpose in compiling each withheld document and the definitions for "records of criminal investigations" and "records of criminal intelligence information" found in G.S. 132-1.4(b)(1)-(2), whether the material was subject to the exception. McCormick v. Hanson Aggregates Southeast, Inc., 164 N.C. App. 459, 596 S.E.2d 431 (2004).

In an action against city employees alleging violations of civil rights, sealing alleged records of criminal investigations was not warranted since the confidentiality interests did not outweigh the constitutional right of public access to judicial proceedings, and there was no indication that disclosure of the documents would jeopardize any ongoing criminal investigations or reveal the names of confidential informants. Johnson v. City of Fayetteville, - F. Supp. 2d - (E.D.N.C. Dec. 11, 2014).

Discretionary Disclosure of Non-public Records. - G.S. 132-1.4(a) grants the trial court the discretion to disclose documents that do not qualify as public records under G.S. 132-1.4 if they could be obtained by defendant pursuant to the normal rules of discovery. McCormick v. Hanson Aggregates Southeast, Inc., 164 N.C. App. 459, 596 S.E.2d 431 (2004).

Records for Reinvestigation. - Where exhibits were returned to district attorney's office at the conclusion of first trial for use in the reinvestigation and preparation of a retrial, the exhibits again became "records of criminal investigations" and were specifically exempted from disclosure under subsection (g). Times-News Publishing Co. v. State, 124 N.C. App. 175, 476 S.E.2d 450 (1996), appeal dismissed, 345 N.C. 645, 483 S.E.2d 717 (1997).

Search Warrants. - Press was not entitled to unseal three search warrants related to a homicide investigation under the Public Records Act, G.S. 132-1 et seq., where release of the information would have undermined the ongoing investigation because the records were sealed pursuant to a court order, exempting them under G.S. 132-1.4(k). In re Search Warrants Issued in Connection with the Investigation into the Death of Nancy Cooper, 200 N.C. App. 180, 683 S.E.2d 418 (2009), review denied, 363 N.C. 855, 694 S.E.2d 201 (2010).

Press was not entitled to unseal three search warrants related to a homicide investigation under a common law right of public access to information where release of the information would have undermined the ongoing investigation because G.S. 132-1.4(k) supplanted any common law right of public access to information regarding arrest and search warrants. In re Search Warrants Issued in Connection with the Investigation into the Death of Nancy Cooper, 200 N.C. App. 180, 683 S.E.2d 418 (2009), review denied, 363 N.C. 855, 694 S.E.2d 201 (2010).

Cited in Jane Doe 1 v. Swannanoa Valley Youth Dev. Ctr., 163 N.C. App. 136, 592 S.E.2d 715 (2004); In re Zahra Clare Baker Investigation, 220 N.C. App. 108, 727 S.E.2d 316 (2012); State v. Ortiz, 238 N.C. App. 508, 768 S.E.2d 322 (2014).

Opinions of Attorney General

Investigation records of the Secretary of State obtained to report lobbying violations under former G.S. 120-47.10 are public records, and do not fall within the exception to the Public Records Act found in G.S. 132-1.4. See opinion of Attorney General to Rodney S. Maddox, Chief Deputy Secretary of State, North Carolina Department of the Secretary of State, 2006 N.C. AG LEXIS 1 (4/3/06).

Records of Secretary of State of Apparent Criminal Violations. - Records obtained and produced by the North Carolina Department of the Secretary of State solely for the purpose of making a report of an apparent criminal violation under G.S. 120-47.10, fall within the exception to the Public Records Act found in G.S. 132-1.4; as a general rule, the records in the department's possession are not records of criminal investigations or intelligence and are a public record. See opinion of Attorney General to Rodney S. Maddox, Chief Deputy Secretary of State, 2006 N.C.A.G. 1 (04/03/06).

§ 132-1.4A. Law enforcement agency recordings.

Definitions. - The following definitions apply in this section:
1. Body-worn camera. - An operational video or digital camera or other electronic device, including a microphone or other mechanism for allowing audio capture, affixed to the uniform or person of law enforcement agency personnel and positioned in a way that allows the camera or device to capture interactions the law enforcement agency personnel has with others.
2. Custodial law enforcement agency. - The law enforcement agency that owns or leases or whose personnel operates the equipment that created the recording at the time the recording was made.
3. Dashboard camera. - A device or system installed or used in a law enforcement agency vehicle that electronically records images or audio depicting interaction with others by law enforcement agency personnel. This term does not include body-worn cameras.
4. Disclose or disclosure. - To make a recording available for viewing or listening to by the person requesting disclosure, at a time and location chosen by the custodial law enforcement agency. This term does not include the release of a recording.
5. Personal representative. - A parent, court-appointed guardian, spouse, or attorney licensed in North Carolina of a person whose image or voice is in the recording. If a person whose image or voice is in the recording is deceased, the term also means the personal representative of the estate of the deceased person; the deceased person's surviving spouse, parent, or adult child; the deceased person's attorney licensed in North Carolina; or the parent or guardian of a surviving minor child of the deceased.
6. Recording. - A visual, audio, or visual and audio recording captured by a body-worn camera, a dashboard camera, or any other video or audio recording device operated by or on behalf of a law enforcement agency or law enforcement agency personnel when carrying out law enforcement responsibilities. This term does not include any video or audio recordings of interviews regarding agency internal investigations or interviews or interrogations of suspects or witnesses.
7. Release. - To provide a copy of a recording.
8. Serious bodily injury. - A bodily injury that creates a substantial risk of death, or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization.
Public Record and Personnel Record Classification. - Recordings are not public records as defined by G.S. 132-1. Recordings are not personnel records as defined in Part 7 of Chapter 126 of the General Statutes, G.S. 160A-168, or G.S. 153A-98.
Immediate Disclosure. - When requested by submission of the notarized form described in subsection (b2) of this section to the head of a law enforcement agency, any portion of a recording in the custody of a law enforcement agency which depicts a death or serious bodily injury shall, upon order of the court pursuant to subsection (b3) of this section, be disclosed to a personal representative of the deceased, the injured individual, or a personal representative on behalf of the injured individual. Any disclosure ordered by the court pursuant to subsection (b3) of this section shall be done by the agency in a private setting. A person who receives disclosure as ordered by the court pursuant to subsection (b3) of this section shall not record or copy the recording. Except as provided in subsection (b3) of this section, the portion of the recording relevant to the death or serious bodily injury shall not be edited or redacted.
Notarized Form. - A person requesting disclosure pursuant to subsection (b1) of this section must submit a signed and notarized form provided by the law enforcement agency. The form shall be developed by the Administrative Office of the Courts and shall include notice that, if disclosed, the recording may not be recorded or copied, or if unlawfully recorded or copied may not be knowingly disseminated, and notice of the criminal penalties provided in subsection (b4) of this section.
Immediate Disclosure Review. - No later than three business days from receipt of the notarized form requesting immediate disclosure pursuant to subsection (b1) of this section, a law enforcement agency shall file a petition in the superior court in any county where any portion of the recording was made for issuance of a court order regarding disclosure of the recording requested pursuant to subsection (b1) of this section and shall also deliver a copy of the petition and a copy of the recording, which shall remain confidential unless the court issues an order of disclosure pursuant to this section, to the senior resident superior court judge for that superior court district or their designee. There shall be no fee for filing the petition. The court shall conduct an in-camera review of the recording and shall enter an order within seven business days of the filing of the petition instructing that the recording be (i) immediately disclosed without editing or redaction; (ii) immediately disclosed with editing or redaction; (iii) disclosed at a later date, with or without editing or redaction; or (iv) not disclosed to the person or persons seeking disclosure. In determining whether the recording may be disclosed pursuant to this section, the court shall consider the following factors:
1. If the person requesting disclosure of the recording is a person authorized to receive disclosure pursuant to subsection (c) of this section.
2. If the recording contains information that is otherwise confidential or exempt from disclosure or release under State or federal law.
3. If disclosure would reveal information regarding a person that is of a highly sensitive and personal nature.
4. If disclosure may harm the reputation or jeopardize the safety of a person.
5. If disclosure would create a serious threat to the fair, impartial, and orderly administration of justice.
6. If confidentiality is necessary to protect either an active or inactive internal or criminal investigation or potential internal or criminal investigation.
Any person who willfully records, copies, or attempts to record or copy a recording disclosed pursuant to subsection (b1) of this section shall be guilty of a Class 1 misdemeanor. Any person who knowingly disseminates a recording or a copy of a recording disclosed pursuant to subsection (b1) of this section is guilty of a Class I felony.
Disclosure; General. - Recordings in the custody of a law enforcement agency shall be disclosed only as provided by this section. Recordings depicting a death or serious bodily injury shall only be disclosed as provided in subsections (b1) through (b3) of this section.
1. A person whose image or voice is in the recording.
2. A personal representative of an adult person whose image or voice is in the recording, if the adult person has consented to the disclosure.
3. A personal representative of a minor or of an adult person under lawful guardianship whose image or voice is in the recording.
4. A personal representative of a deceased person whose image or voice is in the recording.
5. A personal representative of an adult person who is incapacitated and unable to provide consent to disclosure.
Disclosure; Factors for Consideration. - Upon receipt of the written request for disclosure, as promptly as possible, the custodial law enforcement agency must either disclose the portion of the recording relevant to the person's request or notify the requestor of the custodial law enforcement agency's decision not to disclose the recording to the requestor.
1. If the person requesting disclosure of the recording is a person authorized to receive disclosure pursuant to subsection (c) of this section.
2. If the recording contains information that is otherwise confidential or exempt from disclosure or release under State or federal law.
3. If disclosure would reveal information regarding a person that is of a highly sensitive personal nature.
4. If disclosure may harm the reputation or jeopardize the safety of a person.
5. If disclosure would create a serious threat to the fair, impartial, and orderly administration of justice.
6. If confidentiality is necessary to protect either an active or inactive internal or criminal investigation or potential internal or criminal investigation.
Appeal of Disclosure Denial. - If a law enforcement agency denies disclosure pursuant to subsection (d) of this section, or has failed to provide disclosure more than three business days after the request for disclosure, the person seeking disclosure may apply to the superior court in any county where any portion of the recording was made for a review of the denial of disclosure. The court may conduct an in-camera review of the recording. The court may order the disclosure of the recording only if the court finds that the law enforcement agency abused its discretion in denying the request for disclosure. The court may only order disclosure of those portions of the recording that are relevant to the person's request. A person who receives disclosure pursuant to this subsection shall not record or copy the recording. An order issued pursuant to this subsection may not order the release of the recording.
Release of Recordings to Certain Persons; Expedited Process. - Notwithstanding the provisions of subsection (g) of this section, a person authorized to receive disclosure pursuant to subsection (c) of this section, or the custodial law enforcement agency, may petition the superior court in any county where any portion of the recording was made for an order releasing the recording to a person authorized to receive disclosure. There shall be no fee for filing the petition which shall be filed on a form approved by the Administrative Office of the Courts and shall state the date and approximate time of the activity captured in the recording, or otherwise identify the activity with reasonable particularity sufficient to identify the recording. If the petitioner is a person authorized to receive disclosure, notice and an opportunity to be heard shall be given to the head of the custodial law enforcement agency. Petitions filed pursuant to this subsection shall be set down for hearing as soon as practicable and shall be accorded priority by the court.
Release of Recordings; General; Court Order Required. - Recordings in the custody of a law enforcement agency shall only be released pursuant to court order. Any custodial law enforcement agency or any person requesting release of a recording may file an action in the superior court in any county where any portion of the recording was made for an order releasing the recording. The request for release must state the date and approximate time of the activity captured in the recording, or otherwise identify the activity with reasonable particularity sufficient to identify the recording to which the action refers. The court may conduct an in-camera review of the recording. In determining whether to order the release of all or a portion of the recording, in addition to any other standards the court deems relevant, the court shall consider the applicability of all of the following standards:
1. Release is necessary to advance a compelling public interest.
2. The recording contains information that is otherwise confidential or exempt from disclosure or release under State or federal law.
3. The person requesting release is seeking to obtain evidence to determine legal issues in a current or potential court proceeding.
4. Release would reveal information regarding a person that is of a highly sensitive personal nature.
5. Release may harm the reputation or jeopardize the safety of a person.
6. Release would create a serious threat to the fair, impartial, and orderly administration of justice.
7. Confidentiality is necessary to protect either an active or inactive internal or criminal investigation or potential internal or criminal investigation.
8. There is good cause shown to release all portions of a recording.
Release of Recordings; Law Enforcement Purposes. - Notwithstanding the requirements of subsections (c), (f), and (g) of this section, a custodial law enforcement agency shall disclose or release a recording to a district attorney (i) for review of potential criminal charges, (ii) in order to comply with discovery requirements in a criminal prosecution, (iii) for use in criminal proceedings in district court, or (iv) for any other law enforcement purpose, and may disclose or release a recording for any of the following purposes:
1. For law enforcement training purposes.
2. Within the custodial law enforcement agency for any administrative, training, or law enforcement purpose.
3. To another law enforcement agency for law enforcement purposes.
4. For suspect identification or apprehension.
5. To locate a missing or abducted person.
Retention of Recordings. - Any recording subject to the provisions of this section shall be retained for at least the period of time required by the applicable records retention and disposition schedule developed by the Department of Natural and Cultural Resources, Division of Archives and Records.
Agency Policy Required. - Each law enforcement agency that uses body-worn cameras or dashboard cameras shall adopt a policy applicable to the use of those cameras.
No civil liability shall arise from compliance with the provisions of this section, provided that the acts or omissions are made in good faith and do not constitute gross negligence, willful or wanton misconduct, or intentional wrongdoing.
Fee for Copies. - A law enforcement agency may charge a fee to offset the cost incurred by it to make a copy of a recording for release. The fee shall not exceed the actual cost of making the copy.
Attorneys' Fees. - The court may not award attorneys' fees to any party in any action brought pursuant to this section.

In any proceeding pursuant to this subsection, the following persons shall be notified and those persons, or their designated representative, shall be given an opportunity to be heard at any proceeding: (i) the head of the custodial law enforcement agency, (ii) any law enforcement agency personnel whose image or voice is in the portion of the recording requested to be disclosed and the head of that person's employing law enforcement agency, (iii) the District Attorney, (iv) the investigating law enforcement agency, and (v) the party requesting the disclosure. The court may order any conditions or restrictions on the disclosure that the court deems appropriate.

Petitions filed pursuant to this subsection shall be scheduled for hearing as soon as practicable, and the court shall issue an order pursuant to the provisions of this subsection no later than seven business days after the filing of the petition. Any subsequent proceedings in such actions shall be accorded priority by the trial and appellate courts.

If disclosure of a recording is denied based on subdivision (6) of this subsection, the court shall schedule a subsequent hearing, to be held no more than 20 business days after the issuance of the order, to reconsider whether the recording should be disclosed.

A person requesting disclosure of a recording must make a written request to the head of the custodial law enforcement agency that states the date and approximate time of the activity captured in the recording or otherwise identifies the activity with reasonable particularity sufficient to identify the recording to which the request refers.

The head of the custodial law enforcement agency may only disclose a recording to the following:

When disclosing the recording, the law enforcement agency shall disclose only those portions of the recording that are relevant to the person's request. A person who receives disclosure pursuant to this subsection shall not record or copy the recording.

The custodial law enforcement agency may consider any of the following factors in determining if a recording is disclosed:

In any proceeding pursuant to this subsection, the following persons shall be notified and those persons, or their designated representative, shall be given an opportunity to be heard at any proceeding: (i) the head of the custodial law enforcement agency, (ii) any law enforcement agency personnel whose image or voice is in the recording and the head of that person's employing law enforcement agency, and (iii) the District Attorney. Actions brought pursuant to this subsection shall be set down for hearing as soon as practicable, and subsequent proceedings in such actions shall be accorded priority by the trial and appellate courts.

The court shall first determine if the person to whom release of the recording is requested is a person authorized to receive disclosure pursuant to subsection (c) of this section. In making this determination, the court may conduct an in-camera review of the recording and may, in its discretion, allow the petitioner to be present to assist in identifying the image or voice in the recording that authorizes disclosure to the person to whom release is requested. If the court determines that the person is not authorized to receive disclosure pursuant to subsection (c) of this section, there shall be no right of appeal and the petitioner may file an action for release pursuant to subsection (g) of this section.

If the court determines that the person to whom release of the recording is requested is a person authorized to receive disclosure pursuant to subsection (c) of this section, the court shall consider the standards set out in subsection (g) of this section and any other standards the court deems relevant in determining whether to order the release of all or a portion of the recording. The court may conduct an in-camera review of the recording. The court shall release only those portions of the recording that are relevant to the person's request and may place any conditions or restrictions on the release of the recording that the court, in its discretion, deems appropriate.

The court shall release only those portions of the recording that are relevant to the person's request, and may place any conditions or restrictions on the release of the recording that the court, in its discretion, deems appropriate.

In any proceeding pursuant to this subsection, the following persons shall be notified and those persons, or their designated representative, shall be given an opportunity to be heard at any proceeding: (i) the head of the custodial law enforcement agency, (ii) any law enforcement agency personnel whose image or voice is in the recording and the head of that person's employing law enforcement agency, and (iii) the District Attorney. Actions brought pursuant to this subsection shall be set down for hearing as soon as practicable, and subsequent proceedings in such actions shall be accorded priority by the trial and appellate courts.

History

(2016-88, s. 1; 2019-48, s. 1; 2021-138, s. 21(a).)

Cross References. - As to various provisions pertaining to SBI and State Crime Laboratory access to view and analyze recordings, see Article 8A of Chapter 15A, G.S. 114-64, G.S. 153A-436.1, and G.S. 160A-490.1.

Grants for Law Enforcement Cameras. - Session Laws 2017-57, s. 16.7(a)-(c), as amended by Session Laws 2018-5, s. 16.1(a), provides: "(a) Funds appropriated in S.L. 2015-241 and S.L. 2017-57 to the Department of Public Safety for body-worn camera grants shall not revert but shall be used as follows:

"(1) Seventy-five thousand dollars ($75,000) to Samarcand Training Academy for upgrades to its training simulator to support school safety.

"(2) Five hundred thousand dollars ($500,000) to the North Carolina Sheriffs' Association to be used to provide grants to implement a statewide sex offender database that connects all 100 counties and allows for robust data entry and retrieval at the local level.

"(3) The remaining funds to provide matching grants to local and county law enforcement agencies in counties with a population of less than 75,000 according to the latest federal decennial census to purchase and place into service body-worn or dashboard video cameras, as defined by G.S. 132-1.4A, and for training and related expenses. These grant funds shall be administered by the Governor's Crime Commission, which shall develop guidelines and procedures for the administration and distribution of grants to those agencies. These guidelines and procedures shall include the following requirements and limitations:

"a. The maximum grant amount shall not exceed one hundred thousand dollars ($100,000).

"b. Grantees shall be required to have appropriate policies and procedures in place governing the operation of body-worn or dashboard cameras, as defined by G.S. 132-1.4A, and the proper storage of images recorded with those cameras.

"(b) The Governor's Crime Commission shall submit a report on the grant funds distributed pursuant to this section to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety as follows:

"(1) For the 2017-2018 fiscal year, no later than August 1, 2018.

"(2) For the 2018-2019 fiscal year, no later than August 1, 2019.

"(b1) No later than July 1, 2019, the North Carolina Sheriffs' Association shall submit to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety a report on the use of the grant funds distributed pursuant to subdivision (2) of subsection (a) of this section.

"(c) Definition. - The term 'body-worn camera' means an operational video camera, including a microphone or other mechanism for allowing audio capture, affixed to a law enforcement officer's uniform and positioned in a way that allows the video camera to capture interactions the law enforcement officer has with the public."

Editor's Note. - Subsections (e1) through ( l ), as enacted by Session Laws 2016-88, s. 1, were redesignated as subsections (f) through (m) at the direction of the Revisor of Statutes.

Session Laws 2016-88, s. 5, made this section effective October 1, 2016, and applicable to all requests made on or after that date for the disclosure or release of a recording.

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium."

Session Laws 2017-57, s. 39.6, is a severability clause.

Session Laws 2018-5, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2018.'"

Session Laws 2018-5, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018-2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018-2019 fiscal year."

Session Laws 2018-5, s. 39.7, is a severability clause.

Session Laws 2021-138, s. 21(b), provides: "No later than the effective date of this section [December 1, 2021], the Administrative Office of the Courts shall develop and make available to all law enforcement agencies the following forms:

"(1) A signed and notarized request for immediate disclosure as required by G.S. 132-1.4A(b1) and (b2) as enacted by subsection (a) of this section.

"(2) A petition for use by law enforcement agencies pursuant to G.S. 132-1.4A(b3) as enacted by subsection (a) of this section."

Session Laws 2021-138, s. 21(c), made the rewriting of this section by Session Laws 2021-138, s. 21(a), effective December 1, 2021, and applicable to all requests made on or after that date for disclosure of a recording.

Session Laws 2021-138, s. 22(a), is a severability clause.

Effect of Amendments. - Session Laws 2019-48, s. 1, effective June 26, 2019, in subsection (h), inserted "for" at the beginning of division (iv), and added subdivisions (h)(4) and (h)(5).

Session Laws 2021-138, s. 21(a), substituted "attorney licensed in North Carolina" for "attorney" twice in subdivision (a)(5); added subdivision (a)(8) and subsections (b1) through (b4); and added the second sentence in the first paragraph of subsection (c). For effective date and applicability, see editor's note.

Legal Periodicals. - For article, "Police-Generated Digital Video: Five Key Questions, Multiple Audiences, and a Range of Answers," see 96 N.C.L. Rev. 1237 (2018).

For article, "Body Cameras and the Path to Redeem Privacy Law," see 96 N.C.L. Rev. 1257 (2018).

For article, "Police Misconduct, Video Recording, and Procedural Barriers to Rights Enforcement," see 96 N.C.L. Rev. 1313 (2018).

For article, "Police Body-Worn Cameras," see 96 N.C.L. Rev. 1363 (2018).

For article, "Privacy and Cybersecurity Lessons at the Intersection of the Internet of Things and Police Body-Worn Cameras," see 96 N.C.L. Rev. 1475 (2018).

For article, "Officer Discretion and the Choice to Record: Officer Attitudes Towards Body-Worn Camera Activation," see 96 N.C.L. Rev. 1524 (2018).

For article, "The Intersection of Law, Policy, and Police Body-Worn Cameras: An Exploration of Critical Issues," see 96 N.C.L. Rev. 1579 (2018).

For article, "Democratizing Proof: Pooling Public and Police Body-Camera Videos," see 96 N.C.L. Rev. 1639 (2018).

§ 132-1.5. 911 database.

Automatic number identification and automatic location identification information that consists of the name, address, and telephone numbers of telephone subscribers, or the e-mail addresses of subscribers to an electronic emergency notification or reverse 911 system, that is contained in a county or municipal 911 database, or in a county or municipal telephonic or electronic emergency notification or reverse 911 system, is confidential and is not a public record as defined by Chapter 132 of the General Statutes if that information is required to be confidential by the agreement with the telephone company by which the information was obtained. Dissemination of the information contained in the 911, electronic emergency notification or reverse 911 system, or automatic number and automatic location database is prohibited except on a call-by-call basis only for the purpose of handling emergency calls or for training, and any permanent record of the information shall be secured by the public safety answering points and disposed of in a manner which will retain that security except as otherwise required by applicable law.

History

(1997-287, s. 1; 2007-107, s. 3.2(a).)

Effect of Amendments. - Session Laws 2007-107, s. 3.2.(a), effective June 26, 2007, substituted "subscribers, or the e-mail addresses of subscribers to an electronic emergency notification or reverse 911 system, that is contained in a county or municipal 911 database, or in a county or municipal telephonic or electronic emergency notification or reverse 911 system," for "subscribers which contained in a county 911 database" near the beginning of the section; and inserted "electronic emergency notification or reverse 911 system, or" near the middle of the section.

§ 132-1.6. Emergency response plans.

Emergency response plans adopted by a constituent institution of The University of North Carolina, a community college, or a public hospital as defined in G.S. 159-39 and the records related to the planning and development of these emergency response plans are not public records as defined by G.S. 132-1 and shall not be subject to inspection and examination under G.S. 132-6.

History

(2001-500, s. 3.1.)

§ 132-1.7. Sensitive public security information.

Public records, as defined in G.S. 132-1, shall not include information containing specific details of public security plans and arrangements or the detailed plans and drawings of public buildings and infrastructure facilities or plans, schedules, or other documents that include information regarding patterns or practices associated with executive protection and security.
Public records, as defined in G.S. 132-1, shall not include specific security information or detailed plans, patterns, or practices associated with prison operations.
Public records, as defined in G.S. 132-1, shall not include specific security information or detailed plans, patterns, or practices to prevent or respond to criminal, gang, or organized illegal activity.
Public records as defined in G.S. 132-1 do not include plans to prevent or respond to terrorist activity, to the extent such records set forth vulnerability and risk assessments, potential targets, specific tactics, or specific security or emergency procedures, the disclosure of which would jeopardize the safety of governmental personnel or the general public or the security of any governmental facility, building, structure, or information storage system.
Public records shall not include mobile telephone numbers issued by a local, county, or State government to any of the following:
1. A sworn law enforcement officer or nonsworn employee of a public law enforcement agency.
2. An employee of a fire department.
3. Any employee whose duties include responding to an emergency.
Information relating to the general adoption of public security plans and arrangements, and budgetary information concerning the authorization or expenditure of public funds to implement public security plans and arrangements, or for the construction, renovation, or repair of public buildings and infrastructure facilities shall be public records.

History

(2001-516, s. 3; 2003-180, s. 1; 2015-225, s. 3; 2015-241, s. 16A.5.)

Editor's Note. - The number of this section was assigned by the Revisor of Statutes, the number in the 2001 act having been G.S. 132-1.6.

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2015-225, s. 3, effective October 1, 2015, added subsection (b1).

Session Laws 2015-241, s. 16A.5, effective July 1, 2015, added "or plans, schedules, or other documents that include information regarding patterns or practices associated with executive protection and security" at the end of subsection (a); and added subsections (a1) and (a2).

§ 132-1.7A. Alarm registration information.

A public record, as defined by G.S. 132-1, does not include any registration or sensitive security information received or compiled by a city pursuant to an alarm registration ordinance. For purposes of this section, the term "alarm registration ordinance" means an ordinance adopted by a city that requires owners of security, burglar, fire, or similar alarm systems to register with the city. Information that is deemed confidential under this section and is not open to public inspection, examination, or copying includes registration information, including the name, home and business telephone number, and any other personal identifying information provided by an applicant pursuant to an alarm registration ordinance, and any sensitive security information pertaining to an applicant's alarm system, including residential or office blueprints, alarm system schematics, and similar drawings or diagrams.

History

(2015-189, s. 1.)

Editor's Note. - Session Laws 2015-189, s. 2, made this section effective August 5, 2015.

§ 132-1.8. Confidentiality of photographs and video or audio recordings made pursuant to autopsy.

Except as otherwise provided in G.S. 130A-389.1, a photograph or video or audio recording of an official autopsy is not a public record as defined by G.S. 132-1. However, the text of an official autopsy report, including any findings and interpretations prepared in accordance with G.S. 130A-389(a), is a public record and fully accessible by the public. For purposes of this section, an official autopsy is an autopsy performed pursuant to G.S. 130A-389(a).

History

(2005-393, s. 1.)

Editor's Note. - Session Laws 2005-393, s. 4, provides: "This act becomes effective December 1, 2005, and applies to offenses committed on or after that date. This act applies to all unauthorized disclosures of autopsy photographs or video or audio recordings that occur on or after the effective date, regardless of whether the autopsy was performed before or after that date."

§ 132-1.9. Trial preparation materials.

Scope. - A request to inspect, examine, or copy a public record that is also trial preparation material is governed by this section, and, to the extent this section conflicts with any other provision of law, this section applies.
Right to Deny Access. - Except as otherwise provided in this section, a custodian may deny access to a public record that is also trial preparation material. 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.
Trial Preparation Material Prepared in Anticipation of a Legal Proceeding. - Any person who is denied access to a public record that is also claimed to be trial preparation material that was prepared in anticipation of a legal proceeding that has not yet been commenced may petition the court pursuant to G.S. 132-9 for determination as to whether the public record is trial preparation material that was prepared in anticipation of a legal proceeding.
During a Legal Proceeding. -
1. When a legal proceeding is subject to G.S. 1A-1, Rule 26(b)(3), or subject to Rule 26(b)(3) of the Federal Rules of Civil Procedure, a party to the pending legal proceeding, including any appeals and postjudgment proceedings, who is denied access to a public record that is also claimed to be trial preparation material that pertains to the pending proceeding may seek access to such record only by motion made in the pending legal proceeding and pursuant to the procedural and substantive standards that apply to that proceeding. A party to the pending legal proceeding may not directly or indirectly commence a separate proceeding for release of such record pursuant to G.S. 132-9 in any other court or tribunal.
2. When a legal proceeding is not subject to G.S. 1A-1, Rule 26(b)(3), and not subject to Rule 26(b)(3) of the Federal Rules of Civil Procedure, a party to the pending legal proceeding, including any appeals and postjudgment proceedings, who is denied access to a public record that is also claimed to be trial preparation material that pertains to the pending legal proceeding may petition the court pursuant to G.S. 132-9 for access to such record. In determining whether to require the custodian to provide access to all or any portion of the record, the court or other tribunal shall apply the provisions of G.S. 1A-1, Rule 26(b)(3).
3. Any person who is denied access to a public record that is also claimed to be trial preparation material and who is not a party to the pending legal proceeding to which such record pertains, and who is not acting in concert with or as an agent for any party to the pending legal proceeding, may petition the court pursuant to G.S. 132-9 for a determination as to whether the public record is trial preparation material.
Following a Legal Proceeding. - Upon the conclusion of a legal proceeding, including the completion of all appeals and postjudgment proceedings, or, in the case where no legal proceeding has been commenced, upon the expiration of all applicable statutes of limitations and periods of repose, the custodian of a public record that is also claimed to be trial preparation material shall permit the inspection, examination, or copying of such record if any law that is applicable so provides.
Effect of Disclosure. - Disclosure pursuant to this section of all or any portion of a public record that is also trial preparation material, whether voluntary or pursuant to an order issued by a court, or issued by an officer in an administrative or quasi-judicial legal proceeding, shall not constitute a waiver of the right to claim that any other document or record constitutes trial preparation material.
Trial Preparation Materials That Are Not Public Records. - This section does not require disclosure, or authorize a court to require disclosure, of trial preparation material that is not also a public record or that is under other provisions of this Chapter exempted or protected from disclosure by law or by an order issued by a court, or by an officer in an administrative or quasi-judicial legal proceeding.
Definitions. - As used in this section, the following definitions apply:
1. Legal proceeding. - Civil proceedings in any federal or State court. Legal proceeding also includes any federal, State, or local government administrative or quasi-judicial proceeding that is not expressly subject to the provisions of Chapter 1A of the General Statutes or the Federal Rules of Civil Procedure.
2. Trial preparation material. - Any record, wherever located and in whatever form, that is trial preparation material within the meaning of G.S. 1A-1, Rule 26(b)(3), any comparable material prepared for any other legal proceeding, and any comparable material exchanged pursuant to a joint defense, joint prosecution, or joint interest agreement in connection with any pending or anticipated legal proceeding.

History

(2005-332, s. 1; 2005-414, s. 4.)

CASE NOTES

Trial court did not abuse its discretion in ruling that documents a city withheld from a landowner were trial preparation materials under the North Carolina Public Records Act, G.S. 132-1.9(b), and were not subject to inspection because the documents contained mental impressions, conclusions, opinions, or legal theories of city attorneys or other agents of the city in reasonable anticipation of litigation; at the hearing to compel production of public records, the city argued that the materials withheld all related to its research and its taking a look at legal strategies related to possible zoning enforcement, not with respect to any of the claims that the landowner suggested they could pursue against the city with respect to an administrative inspection. Wallace Farm, Inc. v. City of Charlotte, 203 N.C. App. 144, 689 S.E.2d 922, review denied, 364 N.C. 334, 701 S.E.2d 681, 2010 N.C. LEXIS 630 (2010).

§ 132-1.10. Social security numbers and other personal identifying information.

The General Assembly finds the following:
1. The social security number can be used as a tool to perpetuate fraud against a person and to acquire sensitive personal, financial, medical, and familial information, the release of which could cause great financial or personal harm to an individual. While the social security number was intended to be used solely for the administration of the federal Social Security System, over time this unique numeric identifier has been used extensively for identity verification purposes and other legitimate consensual purposes.
2. Although there are legitimate reasons for State and local government agencies to collect social security numbers and other personal identifying information from individuals, government should collect the information only for legitimate purposes or when required by law.
3. When State and local government agencies possess social security numbers or other personal identifying information, the governments should minimize the instances this information is disseminated either internally within government or externally with the general public.
Except as provided in subsections (c) and (d) of this section, no agency of the State or its political subdivisions, or any agent or employee of a government agency, shall do any of the following:
1. Collect a social security number from an individual unless authorized by law to do so or unless the collection of the social security number is otherwise imperative for the performance of that agency's duties and responsibilities as prescribed by law. Social security numbers collected by an agency must be relevant to the purpose for which collected and shall not be collected until and unless the need for social security numbers has been clearly documented.
2. Fail, when collecting a social security number from an individual, to segregate that number on a separate page from the rest of the record, or as otherwise appropriate, in order that the social security number can be more easily redacted pursuant to a valid public records request.
3. Fail, when collecting a social security number from an individual, to provide, at the time of or prior to the actual collection of the social security number by that agency, that individual, upon request, with a statement of the purpose or purposes for which the social security number is being collected and used.
4. Use the social security number for any purpose other than the purpose stated.
5. Intentionally communicate or otherwise make available to the general public a person's social security number or other identifying information. "Identifying information", as used in this subdivision, shall have the same meaning as in G.S. 14-113.20(b), except it shall not include electronic identification numbers, electronic mail names or addresses, Internet account numbers, Internet identification names, parent's legal surname prior to marriage, or drivers license numbers appearing on law enforcement records. Identifying information shall be confidential and not be a public record under this Chapter. A record, with identifying information removed or redacted, is a public record if it would otherwise be a public record under this Chapter but for the identifying information. The presence of identifying information in a public record does not change the nature of the public record. If all other public records requirements are met under this Chapter, the agency of the State or its political subdivisions shall respond to a public records request, even if the records contain identifying information, as promptly as possible, by providing the public record with the identifying information removed or redacted.
6. Intentionally print or imbed an individual's social security number on any card required for the individual to access government services.
7. Require an individual to transmit the individual's social security number over the Internet, unless the connection is secure or the social security number is encrypted.
8. Require an individual to use the individual's social security number to access an Internet Web site, unless a password or unique personal identification number or other authentication device is also required to access the Internet Web site.
9. Print an individual's social security number on any materials that are mailed to the individual, unless state or federal law required that the social security number be on the document to be mailed. A social security number that is permitted to be mailed under this subdivision may not be printed, in whole or in part, on a postcard or other mailer not requiring an envelope, or visible on the envelope or without the envelope having been opened.
Subsection (b) of this section does not apply in the following circumstances:
1. To social security numbers or other identifying information disclosed to another governmental entity or its agents, employees, or contractors if disclosure is necessary for the receiving entity to perform its duties and responsibilities. The receiving governmental entity and its agents, employees, and contractors shall maintain the confidential and exempt status of such numbers.
2. To social security numbers or other identifying information disclosed pursuant to a court order, warrant, or subpoena.
3. To social security numbers or other identifying information disclosed for public health purposes pursuant to and in compliance with Chapter 130A of the General Statutes.
4. To social security numbers or other identifying information that have been redacted.
5. To certified copies of vital records issued by the State Registrar and other authorized officials pursuant to G.S. 130A-93(c). The State Registrar may disclose any identifying information other than social security numbers on any uncertified vital record.
6. To any recorded document in the official records of the register of deeds of the county.
7. To any document filed in the official records of the courts.
If an agency of the State or its political subdivisions, or any agent or employee of a government agency, experiences a security breach, as defined in Article 2A of Chapter 75 of the General Statutes, the agency shall comply with the requirements of G.S. 75-65.
No person preparing or filing a document to be recorded or filed in the official records of the register of deeds, the Department of the Secretary of State, or of the courts may include any person's social security, employer taxpayer identification, drivers license, state identification, passport, checking account, savings account, credit card, or debit card number, or personal identification (PIN) code or passwords in that document, unless otherwise expressly required by law or court order, adopted by the State Registrar on records of vital events, or redacted. Any loan closing instruction that requires the inclusion of a person's social security number on a document to be recorded shall be void. Any person who violates this subsection shall be guilty of an infraction, punishable by a fine not to exceed five hundred dollars ($500.00) for each violation.
The validity of an instrument as between the parties to the instrument is not affected by the inclusion of personal information on a document recorded or filed with the official records of the register of deeds or the Department of the Secretary of State. The register of deeds or the Department of the Secretary of State may not reject an instrument presented for recording because the instrument contains an individual's personal information.
Any person has the right to request that a register of deeds or clerk of court remove, from an image or copy of an official record placed on a register of deeds' or court's Internet Website available to the general public or an Internet Web site available to the general public used by a register of deeds or court to display public records by the register of deeds or clerk of court, the person's social security, employer taxpayer identification, drivers license, state identification, passport, checking account, savings account, credit card, or debit card number, or personal identification (PIN) code or passwords contained in that official record. The request must be made in writing, legibly signed by the requester, and delivered by mail, facsimile, or electronic transmission, or delivered in person to the register of deeds or clerk of court. The request must specify the personal information to be redacted, information that identifies the document that contains the personal information and unique information that identifies the location within the document that contains the social security, employer taxpayer identification, drivers license, state identification, passport, checking account, savings account, credit card, or debit card number, or personal identification (PIN) code or passwords to be redacted. The request for redaction shall be considered a public record with access restricted to the register of deeds, the clerk of court, their staff, or upon order of the court. The register of deeds or clerk of court shall have no duty to inquire beyond the written request to verify the identity of a person requesting redaction and shall have no duty to remove redaction for any reason upon subsequent request by an individual or by order of the court, if impossible to do so. No fee will be charged for the redaction pursuant to such request. Any person who requests a redaction without proper authority to do so shall be guilty of an infraction, punishable by a fine not to exceed five hundred dollars ($500.00) for each violation.
Without a request made pursuant to subsection (f) of this section, a register of deeds, clerk of court, or the Administrative Office of the Courts may remove from images or copies of publicly accessible official records any of the identifying and financial information listed in subsection (f) of this section that is contained in that official record. Registers of deeds, clerks of court, and the Administrative Office of the Courts may apply optical character recognition technology or other reasonably available technology to publicly accessible official records in order to, in good faith, identify and redact any of the identifying and financial information listed in subsection (f) of this section. Notwithstanding the foregoing, law enforcement personnel, judicial officials, and parties to a case and their counsel shall be entitled to access, inspect, and copy unredacted records.
The Administrative Office of the Courts or a clerk of superior court may keep confidential the names, phone numbers, and e-mail addresses collected for the purpose of a court proceeding notification system.
A register of deeds or clerk of court shall immediately and conspicuously post signs throughout his or her offices for public viewing and shall immediately and conspicuously post a notice on any Internet Web site available to the general public used by a register of deeds or clerk of court a notice stating, in substantially similar form, the following:
1. Any person preparing or filing a document for recordation or filing in the official records may not include a social security, employer taxpayer identification, drivers license, state identification, passport, checking account, savings account, credit card, or debit card number, or personal identification (PIN) code or passwords in the document, unless expressly required by law or court order, adopted by the State Registrar on records of vital events, or redacted so that no more than the last four digits of the identification number is included.
2. Any person has a right to request a register of deeds or clerk of court to remove, from an image or copy of an official record placed on a register of deeds' or clerk of court's Internet Web site available to the general public or on an Internet Web site available to the general public used by a register of deeds or clerk of court to display public records, any social security, employer taxpayer identification, drivers license, state identification, passport, checking account, savings account, credit card, or debit card number, or personal identification (PIN) code or passwords contained in an official record. The request must be made in writing and delivered by mail, facsimile, or electronic transmission, or delivered in person, to the register of deeds or clerk of court. The request must specify the personal information to be redacted, information that identifies the document that contains the personal information and unique information that identifies the location within the document that contains the social security, employer taxpayer identification, drivers license, state identification, passport, checking account, savings account, credit card, or debit card number, or personal identification (PIN) code or passwords to be redacted. No fee will be charged for the redaction pursuant to such a request. Any person who requests a redaction without proper authority to do so shall be guilty of an infraction, punishable by a fine not to exceed five hundred dollars ($500.00) for each violation.
Any affected person may petition the court for an order directing compliance with this section. No liability shall accrue to a register of deeds or clerk of court or to his or her agent for any action related to provisions of this section or for any claims or damages that might result from a social security number or other identifying information on the public record or on a register of deeds' or clerk of court's Internet website available to the general public or an Internet Web site available to the general public used by a register of deeds or clerk of court.

History

(2005-414, s. 4; 2006-173, ss. 1-7; 2009-355, s. 3; 2017-158, s. 26.3; 2018-40, s. 13.1.)

Editor's Note. - This section was originally enacted as G.S. 132-1.8. It has been renumbered as this section at the direction of the Revisor of Statutes.

Session Laws 2005-414, s. 11, provides in part that subdivisions (b)(6), (7), (8) and (9) of this section become effective July 1, 2007. The remainder of the section becomes effective December 1, 2005.

Session Laws 2005-414, s. 10, is a severability clause.

Session Laws 2006-173, s. 2, effective August 1, 2006, but not applicable to identifying information accessible on the Internet Web site of the Department of Secretary of State or by magnetic tapes, electronic data feeds, or electronic file transfer of all records or updates of records on file with the Secretary of State until July 1, 2007, added the last four sentences in subdivision (b)(5).

Session Laws 2006-173, s. 8, provides: "The provisions of G.S. 132-1.10(b)(5) shall not apply to identifying information accessible on the Internet Web site of the Department of the Secretary of State or by magnetic tapes, electronic data feeds, or electronic file transfers of all records or updates of records on file with the Secretary of State until July 1, 2007. Notwithstanding the exemption provided by this section, the Department of the Secretary of State shall, whenever funds are made available, make it a priority to first remove identifying information contained in Uniform Commercial Code financing statements filed with the Department of the Secretary of State under Chapter 25 of the General Statutes no later than June 30, 2007."

Session Laws 2006-173, s. 9, provides: "The Department of the Secretary of State shall study the alternatives and costs for redacting identifying information contained in the records of the Department of the Secretary of State, including the Internet Web site of the Department, and shall report the results of its study to the Office of State Budget and Management and to the House and Senate cochairs of the Joint Appropriations Subcommittee on General Government on or before February 1, 2007. This study shall focus on the most expeditious, cost-effective method of redacting identifying information on or before January 1, 2007."

Effect of Amendments. - Session Laws 2006-173, s. 1, effective October 1, 2006, added subsection (c1).

Session Laws 2006-173, ss. 3 and 4, effective August 1, 2006, in subsection (d), substituted "of" for "by," and inserted "the Department of the Secretary of State"; and inserted "or the Department of the Secretary of State" both times it appears in subsection (e).

Session Laws 2006-173, ss. 5 through 7, effective August 1, 2006, and expiring July 1, 2007, inserted "the Department of the Secretary of State" and "the Department of the Secretary of State's" throughout subsections (f) through (h); and substituted "their agents" for "his or her agent" in the second sentence of subsection (h).

Session Laws 2009-355, s. 3, effective October 1, 2009, added subsection (f1).

Session Laws 2017-158, s. 26.3, effective July 21, 2017, rewrote subsection (f1), which read: "Without a request made pursuant to subsection (f) of this section, a register of deeds or clerk of court may remove from an image or copy of an official record placed on a register of deeds' or clerk of court's Internet Web site available to the general public, or placed on an Internet Web site available to the general public used by a register of deeds or clerk of court to display public records, a person's social security or drivers license number contained in that official record. Registers of deeds and clerks of court may apply optical character recognition technology or other reasonably available technology to official records placed on Internet Web sites available to the general public in order to, in good faith, identify and redact social security and drivers license numbers."

Session Laws 2018-40, s. 13.1, effective June 22, 2018, added subsection (f2).

Legal Periodicals. - For article, "Damages Under the Privacy Act: Is Emotional Harm 'Actual'?," see 88 N.C.L. Rev. 334 (2009).

CASE NOTES

Exemption for Court Orders. - The trial court did not abuse its discretion because its order compelling discovery of an employee's social security number fell squarely within the exemption for court orders in both G.S. 132-1.10, and the original Federal Privacy Act of 1974. The trial court took measures to minimize the potential loss of privacy resulting from the disclosure of the social security number, requiring that all records be purged upon the completion of the lawsuit pursuant to G.S. 1A-1, N.C. R. Civ. P. 26(c). Fulmore v. Howell, 189 N.C. App. 93, 657 S.E.2d 437, review denied, 362 N.C. 470, 666 S.E.2d 119 (2008), cert. denied, 555 U.S. 1171, 129 S. Ct. 1318, 173 L. Ed. 2d 586 (2009).

§ 132-1.11. Economic development incentives.

Assumptions and Methodologies. - Subject to the provisions of this Chapter regarding confidential information and the withholding of public records relating to the proposed expansion or location of specific business or industrial projects when the release of those records would frustrate the purpose for which they were created, whenever a public agency or its subdivision performs a cost-benefit analysis or similar assessment with respect to economic development incentives offered to a specific business or industrial project, the agency or its subdivision must describe in detail the assumptions and methodologies used in completing the analysis or assessment. This description is a public record and is subject to all provisions of this Chapter and other law regarding public records.
Disclosure of Public Records Requirements. - Whenever an agency or its subdivision first proposes, negotiates, or accepts an application for economic development incentives with respect to a specific industrial or business project, the agency or subdivision must disclose that any information obtained by the agency or subdivision is subject to laws regarding disclosure of public records. In addition, the agency or subdivision must fully and accurately describe the instances in which confidential information may be withheld from disclosure, the types of information that qualify as confidential information, and the methods for ensuring that confidential information is not disclosed.

History

(2005-429, s. 1.2.)

Editor's Note. - The number of this section was assigned by the Revisor of Statutes, the number in Session Laws 2005-429, s. 1.2, having been G.S. 132-1.8.

§ 132-1.11A. Limited access to identifying information of minors participating in local government programs and programs funded by the North Carolina Partnership for Children, Inc., or a local partnership in certain localities.

A public record, as defined by G.S. 132-1, does not include, as to any minor participating in a program sponsored by a local government or combination of local governments, a program funded by the North Carolina Partnership for Children, Inc., under G.S. 143B-168.12, or a program funded by a local partnership under G.S. 143B-168.14, any of the following information as to that minor participant: (i) name, (ii) address, (iii) age, (iv) date of birth, (v) telephone number, (vi) the name or address of that minor participant's parent or legal guardian, (vii) e-mail address, or (viii) any other identifying information on an application to participate in such program or other records related to that program. Notwithstanding this subsection, the name of a minor who has received a scholarship or other local government-funded award of a financial nature from a local government is a public record.
The county, municipality, and zip code of residence of each participating minor covered by subsection (a) of this section is a public record, with the information listed in subsection (a) of this section redacted.
Nothing in this section makes the information listed in subsection (a) of this section confidential information.
This section applies to the County of Chatham, the Towns of Apex, Cary, Fuquay-Varina, Garner, Holly Springs, Knightdale, Morrisville, Rolesville, Wake Forest, Wendell, and Zebulon, and the City of Raleigh only.

History

(2008-126, s. 1; 2012-67, s. 1; 2012-139, s. 1(a), (b); 2012-194, s. 70.5(a), (c).)

Editor's Note. - Session Laws 2012-139, s. 1(a), effective July 2, 2012, contained a local modification to G.S. 132-1.12 that was only applicable to the Towns of Apex, Cary, Fuquay-Varina, Garner, Holly Springs, Knightdale, Morrisville, Rolesville, Wake Forest, Wendell, and Zebulon, and the City of Raleigh. Session Laws 2012-194, s. 70.5(a), effective July 17, 2012, made an identical local modification to G.S. 132-1.12, applicable only to the County of Chatham. Because the local modification applies to 10 or more localities, Session Laws 2012-139, s. 1(a) and (b), and Session Laws 2012-194, s. 70.5(a) and (c), have been codified as this section at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2012-67, s. 1, effective June 26, 2012, inserted "and programs funded by the North Carolina Partnership for Children, Inc., or a local partnership" in the section heading and "a program funded by the North Carolina Partnership for Children, Inc., under G.S. 143B-168.12, or a program funded by a local partnership under G.S. 143B-168.14," in subsection (a).

Session Laws 2012-139, effective July 2, 2012, deleted "park or recreation" preceding "program sponsored by a local government," inserted clause (vii) and made related changes in (a).

Session Laws 2012-194, s. 70.5, effective July 17, 2012, inserted "the County of Chatham" in subsection (d).

§ 132-1.12. Limited access to identifying information of minors participating in local government parks and recreation programs and programs funded by the North Carolina Partnership for Children, Inc., or a local partnership in other localities.

A public record, as defined by G.S. 132-1, does not include, as to any minor participating in a park or recreation program sponsored by a local government or combination of local governments, a program funded by the North Carolina Partnership for Children, Inc., under G.S. 143B-168.12, or a program funded by a local partnership under G.S. 143B-168.14, any of the following information as to that minor participant: (i) name, (ii) address, (iii) age, (iv) date of birth, (v) telephone number, (vi) the name or address of that minor participant's parent or legal guardian, or (vii) any other identifying information on an application to participate in such program or other records related to that program.
The county, municipality, and zip code of residence of each participating minor covered by subsection (a) of this section is a public record, with the information listed in subsection (a) of this section redacted.
Nothing in this section makes the information listed in subsection (a) of this section confidential information.

History

(2008-126, s. 1; 2012-67, s. 1.)

Editor's Note. - Session Laws 2012-139, s. 1(a), effective July 2, 2012, contained a local modification to this section that was only applicable to the Towns of Apex, Cary, Fuquay-Varina, Garner, Holly Springs, Knightdale, Morrisville, Rolesville, Wake Forest, Wendell, and Zebulon, and the City of Raleigh. Session Laws 2012-194, s. 70.5(a), effective July 17, 2012, made an identical local modification to this section, applicable only to the County of Chatham. Because the local modification applies to 10 or more localities, Session Laws 2012-139, s. 1(a) and (b), and Session Laws 2012-194, s. 70.5(a) and (c), have been codified as G.S. 132-1.11A at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2012-67, s. 1, effective June 26, 2012, rewrote the title of the section by replacing "programs" with "programs and programs funded by the North Carolina Partnership for Children, Inc., or a local partnership"; and in subsection (a), inserted "a program funded by the North Carolina Partnership for Children, Inc., under G.S. 143B-168.12, or a program funded by a local partnership under G.S. 143B-168.14," following "combination of local governments" in the first sentence.

§ 132-1.13. Electronic lists of subscribers open for inspection but not available for copying.

Notwithstanding this chapter, when a unit of local government maintains an electronic mail list of individual subscribers, this chapter does not require that unit of local government to provide a copy of the list. The list shall be available for public inspection in either printed or electronic format or both as the unit of local government elects.
If a unit of local government maintains an electronic mail list of individual subscribers, the unit of local government and its employees and officers may use that list only: (i) for the purpose for which it was subscribed to; (ii) to notify subscribers of an emergency to the public health or public safety; or (iii) in case of deletion of that list, to notify subscribers of the existence of any similar lists to subscribe to.
Repealed by Session Laws 2011-54, s. 1, effective April 28, 2011.

History

(2010-83, ss. 1-3; 2011-54, s. 1.)

Editor's Note. - Session Laws 2010-83, ss. 1 through 3, effective July 9, 2010, applied to 10 or more jurisdictions and were codified as G.S. 132-1.13(a) through (c), respectively, at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2011-54, s. 1, effective April 28, 2011, deleted subsection (c), which read: "This section applies only to Wake and Yadkin Counties, the City of Raleigh, and the Towns of Apex, Cary, Fuquay-Varina, Garner, Holly Springs, Knightdale, Morrisville, Rolesville, Wake Forest, Wendell, and Zebulon."

§ 132-1.14. Personally identifiable information of public utility customers.

Except as otherwise provided in this section, a public record, as defined by G.S. 132-1, does not include personally identifiable information obtained by the Public Staff of the Utilities Commission from customers requesting assistance from the Public Staff regarding rate or service disputes with a public utility, as defined by G.S. 62-3(23).
The Public Staff may disclose personally identifiable information of a customer to the public utility involved in the matter for the purpose of investigating such disputes.
Such personally identifiable information is a public record to the extent disclosed by the customer in a complaint filed with the Commission pursuant to G.S. 62-73.
For purposes of this section, "personally identifiable information" means the customer's name, physical address, e-mail address, telephone number, and public utility account number.

History

(2017-10, s. 2.1(c).)

§§ 132-1.15 through 132-1.22: Reserved for future codification purposes.

§ 132-1.23. Eugenics program records.

Records in the custody of the State, including those in the custody of the Office of Justice for Sterilization Victims, concerning the Eugenics Board of North Carolina's program are confidential and are not public records, including the records identifying (i) individuals impacted by the program, (ii) individuals, or their guardians or authorized agents, inquiring about the impact of the program on the individuals, or (iii) individuals, or their guardians or authorized agents, inquiring about the potential impact of the program on others.
Notwithstanding subsection (a) of this section, an individual impacted by the program, or a guardian or authorized agent of that individual, may obtain that individual's records under the program upon execution of a proper release authorization.
Notwithstanding subsections (a) and (b) of this section, minutes or reports of the Eugenics Board of North Carolina, for which identifying information of the individuals impacted by the program have been redacted, may be released to any person. As used in this subsection, "identifying information" shall include the name, street address, birth day and month, and any other information the State believes may lead to the identity of any individual impacted by the program, or of any relative of an individual impacted by the program.

History

(2011-188, s. 1; 2013-360, s. 6.18(c); 2014-100, s. 6.13(e).)

Effect of Amendments. - Session Laws 2013-360, s. 6.18(c), effective July 1, 2013, rewrote the section.

§ 132-2. Custodian designated.

The public official in charge of an office having public records shall be the custodian thereof.

History

(1935, c. 265, s. 2.)

Editor's Note. - Session Laws 2013-413, s. 9, provides: "The Division of Mental Health, Developmental Disabilities, and Substance Abuse Services shall amend its Records Retention and Disposition Schedule Manual to provide that if a Medicaid service has been eliminated by the State, the provider must retain records for three years after the last date of the service, unless a longer period is required by federal law. At the termination of that time period, records may be destroyed or transferred to a State agency or contractor identified by the Department of Health and Human Services."

Session Laws 2013-413, s. 61(a), is a severability clause.

CASE NOTES

"Custodian" Interpreted. - By using the singular word "the" public official and in connection with that public official being in charge of an office having public records, G.S. 132-2 designates a particular person within an office as being the designated custodian for that office's public records. Cline v. Hoke, 238 N.C. App. 16, 766 S.E.2d 861 (2014).

Designated Custodian. - Former district attorney's action against the assistant director of the North Carolina Administrative Office of the Courts (AOC) in his official capacity had been properly dismissed as the assistant director was not the person in charge of the AOC, and thus, he was not the designated custodian of the AOC's records per G.S. 132-2. Cline v. Hoke, 238 N.C. App. 16, 766 S.E.2d 861 (2014).

§ 132-3. Destruction of records regulated.

Prohibition. - No public official may destroy, sell, loan, or otherwise dispose of any public record, except in accordance with G.S. 121-5 and G.S. 130A-99, without the consent of the Department of Natural and Cultural Resources. Whoever unlawfully removes a public record from the office where it is usually kept, or alters, defaces, mutilates or destroys it shall be guilty of a Class 3 misdemeanor and upon conviction only fined not less than ten dollars ($10.00) nor more than five hundred dollars ($500.00).
Revenue Records. - Notwithstanding subsection (a) of this section and G.S. 121-5, when a record of the Department of Revenue has been copied in any manner, the original record may be destroyed upon the order of the Secretary of Revenue. If a record of the Department of Revenue has not been copied, the original record shall be preserved for at least three years. After three years the original record may be destroyed upon the order of the Secretary of Revenue.
Employment Security Records. - Notwithstanding subsection (a) of this section and G.S. 121-5, when a record of the Division of Employment Security has been copied in any manner, the original record may be destroyed upon the order of the Division. If a record of that Division has not been copied, the original record shall be preserved for at least three years. After three years the original record may be destroyed upon the order of the Assistant Secretary of Commerce.

History

(1935, c. 265, s. 3; 1943, c. 237; 1953, c. 675, s. 17; 1957, c. 330, s. 2; 1973, c. 476, s. 48; 1993, c. 485, s. 39; c. 539, s. 966; 1994, Ex. Sess., c. 24, s. 14(c); 1997-309, s. 12; 2001-115, s. 2; 2011-401, s. 3.16; 2015-241, s. 14.30(s).)

Cross References. - For section further regulating destruction of records, see G.S. 121-5.

Editor's Note. - Session Laws 1997-309, s. 15, provides that the removal and destruction by a register of deeds of any out-of-county birth certificates prior to the effective date of that act [July 17, 1997] is valid, and the register of deeds is not in violation of G.S. 121-5 or G.S. 132-3.

Session Laws 2013-413, s. 9, provides: "The Division of Mental Health, Developmental Disabilities, and Substance Abuse Services shall amend its Records Retention and Disposition Schedule Manual to provide that if a Medicaid service has been eliminated by the State, the provider must retain records for three years after the last date of the service, unless a longer period is required by federal law. At the termination of that time period, records may be destroyed or transferred to a State agency or contractor identified by the Department of Health and Human Services."

Session Laws 2013-413, s. 61(a), is a severability clause.

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2011-401, s. 3.16, effective November 1, 2011, in subsection (c), in the subsection catchline, deleted "Commission" preceding "Records," in the first sentence, substituted "Division of Employment Security" for "Employment Security Commission" and "Division" for "Chairman of the Employment Security Commission," in the second sentence, substituted "that Division" for "the Commission," and in the last sentence, substituted "Assistant Secretary of Commerce" for "Chairman of the Employment Security Commission."

Session Laws 2015-241, s. 14.30(s), effective July 1, 2015, substituted "Department of Natural and Cultural Resources" for "Department of Cultural Resources" in subsection (a).

CASE NOTES

Applied in State v. West, 31 N.C. App. 431, 229 S.E.2d 826 (1976); State v. Caldwell, 53 N.C. App. 1, 279 S.E.2d 852 (1981).

Cited in State v. Bellar, 16 N.C. App. 339, 192 S.E.2d 86 (1972); Reo Props. Corp. v. Smith, 227 N.C. App. 298, 743 S.E.2d 230 (2013), review denied 748 S.E.2d 327, 367 N.C. 239, 2013 N.C. LEXIS 1041 (2013).

§ 132-4. Disposition of records at end of official's term.

Whoever has the custody of any public records shall, at the expiration of his term of office, deliver to his successor, or, if there be none, to the Department of Natural and Cultural Resources, all records, books, writings, letters and documents kept or received by him in the transaction of his official business; and any such person who shall refuse or neglect for the space of 10 days after request made in writing by any citizen of the State to deliver as herein required such public records to the person authorized to receive them shall be guilty of a Class 1 misdemeanor.

History

(1935, c. 265, s. 4; 1943, c. 237; 1973, c. 476, s. 48; 1975, c. 696, s. 1; 1993, c. 539, s. 967; 1994, Ex. Sess., c. 24, s. 14(c); 2015-241, s. 14.30(s).)

Editor's Note. - Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2015-241, s. 14.30(s), effective July 1, 2015, substituted "Department of Natural and Cultural Resources" for "Department of Cultural Resources."

§ 132-5. Demanding custody.

Whoever is entitled to the custody of public records shall demand them from any person having illegal possession of them, who shall forthwith deliver the same to him. If the person who unlawfully possesses public records shall without just cause refuse or neglect for 10 days after a request made in writing by any citizen of the State to deliver such records to their lawful custodian, he shall be guilty of a Class 1 misdemeanor.

History

(1935, c. 265, s. 5; 1975, c. 696, s. 2; 1993, c. 539, s. 968; 1994, Ex. Sess., c. 24, s. 14(c).)

Legal Periodicals. - For comment, "You Can't Always Get What You Want: A Look at North Carolina's Public Records Law," see 72 N.C.L. Rev. 1527 (1994).

§ 132-5.1. Regaining custody; civil remedies.

The Secretary of the Department of Natural and Cultural Resources or his designated representative or any public official who is the custodian of public records which are in the possession of a person or agency not authorized by the custodian or by law to possess such public records may petition the superior court in the county in which the person holding such records resides or in which the materials in issue, or any part thereof, are located for the return of such public records. The court may order such public records to be delivered to the petitioner upon finding that the materials in issue are public records and that such public records are in the possession of a person not authorized by the custodian of the public records or by law to possess such public records. If the order of delivery does not receive compliance, the petitioner may request that the court enforce such order through its contempt power and procedures.
At any time after the filing of the petition set out in subsection (a) or contemporaneous with such filing, the public official seeking the return of the public records may by ex parte petition request the judge or the court in which the action was filed to grant one of the following provisional remedies:
1. An order directed at the sheriff commanding him to seize the materials which are the subject of the action and deliver the same to the court under the circumstances hereinafter set forth; or
2. A preliminary injunction preventing the sale, removal, disposal or destruction of or damage to such public records pending a final judgment by the court.
The judge or court aforesaid shall issue an order of seizure or grant a preliminary injunction upon receipt of an affidavit from the petitioner which alleges that the materials at issue are public records and that unless one of said provisional remedies is granted, there is a danger that such materials shall be sold, secreted, removed out of the State or otherwise disposed of so as not to be forthcoming to answer the final judgment of the court respecting the same; or that such property may be destroyed or materially damaged or injured if not seized or if injunctive relief is not granted.
The aforementioned order of seizure or preliminary injunction shall issue without notice to the respondent and without the posting of any bond or other security by the petitioner.

History

(1975, c. 787, s. 2; 2015-241, s. 14.30(x).)

Editor's Note. - Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2015-241, s. 14.30(x), effective July 1, 2015, substituted "Secretary of Natural and Cultural Resources" for "Secretary of the Department of Cultural Resources" in subsection (a).

CASE NOTES

Public records and documents are the property of the State and not of the individual who happens, at the moment, to have them in his possession; and when they are deposited in the place designated for them by law, there they must remain, and can be removed only under authority of an act of the legislature and in the manner and for the purpose designated by law. State v. West, 31 N.C. App. 431, 229 S.E.2d 826 (1976), aff'd, 293 N.C. 18, 235 S.E.2d 150 (1977).

Since ownership of bills of indictment is in the State, it cannot be disposed of except as provided by law. It cannot be forfeited through the oversight, carelessness or even intentional conduct of any of the agents of the State. Thus, the documents in question left the custody of the court in an unlawful manner and legal title thereto cannot pass to the individual who happens, at the moment, to have them in his possession. State v. West, 31 N.C. App. 431, 229 S.E.2d 826 (1976), aff'd, 293 N.C. 18, 235 S.E.2d 150 (1977).

§ 132-6. Inspection, examination and copies of public records.

Every 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 promptly as possible, furnish copies thereof upon payment of any fees as may be prescribed by law. As used herein, "custodian" does not mean an agency that holds the public records of other agencies solely for purposes of storage or safekeeping or solely to provide data processing.
A public agency or custodian may satisfy the requirements in subsection (a) of this section by making public records available online in a format that allows a person to view the public record and print or save the public record to obtain a copy. If the public agency or custodian maintains public records online in a format that allows a person to view and print or save the public records to obtain a copy, the public agency or custodian is not required to provide copies to these public records in any other way.
No person requesting to inspect and examine public records, or to obtain copies thereof, shall be required to disclose the purpose or motive for the request.
No request to inspect, examine, or obtain copies of public records shall be denied on the grounds that confidential information is commingled with the requested nonconfidential information. If it is necessary to separate confidential from nonconfidential information in order to permit the inspection, examination, or copying of the public records, the public agency shall bear the cost of such separation.
Notwithstanding the provisions of subsections (a) and (b) of this section, public records relating to the proposed expansion or location of specific business or industrial projects may be withheld so long as their inspection, examination or copying would frustrate the purpose for which such public records were created; provided, however, that nothing herein shall be construed to permit the withholding of public records relating to general economic development policies or activities. Once the State, a local government, or the specific business has announced a commitment by the business to expand or locate a specific project in this State or the business has made a final decision not to do so, of which the State or local government agency involved with the project knows or should know, the provisions of this subsection allowing public records to be withheld by the agency no longer apply. Once the provisions of this subsection no longer apply, the agency shall disclose as soon as practicable, and within 25 business days, public records requested for the announced project that are not otherwise made confidential by law. An announcement that a business or industrial project has committed to expand or locate in the State shall not require disclosure of local government records relating to the project if the business has not selected a specific location within the State for the project. Once a specific location for the project has been determined, local government records must be disclosed, upon request, in accordance with the provisions of this section. For purposes of this section, "local government records" include records maintained by the State that relate to a local government's efforts to attract the project.
1. Unless controlled by another subdivision of this subsection, the records may be withheld if their inspection, examination, or copying would frustrate the purpose for which the records were created.
2. If no discretionary incentives pursuant to Chapter 143B of the General Statutes are requested for a project and if the specific business decides to expand or locate the project in the State, then the records relating to the project shall not be disclosed.
3. If the specific business has requested discretionary incentives for a project pursuant to Chapter 143B of the General Statutes and if either the business decides not to expand or locate the project in the State or the project does not receive the discretionary incentives, then the only records relating to the project that may be disclosed are the requests for discretionary incentives pursuant to Chapter 143B of the General Statutes and any information submitted to the Department by the contracted entity.
4. If the specific business receives a discretionary incentive for a project pursuant to Chapter 143B of the General Statutes and the State or the specific business announces a commitment to expand or locate the project in this State, all records requested for the announced project, not otherwise made confidential by law, shall be disclosed as soon as practicable and within 25 days from the date of announcement.
The application of this Chapter is subject to the provisions of Article 1 of Chapter 121 of the General Statutes, the North Carolina Archives and History Act.
Notwithstanding the provisions of subsections (a) and (a1) of this section, the inspection or copying of any public record which, because of its age or condition could be damaged during inspection or copying, may be made subject to reasonable restrictions intended to preserve the particular record.

Records relating to the proposed expansion or location of specific business or industrial projects that are in the custody of the Department of Commerce or an entity with which the Department contracts pursuant to G.S. 143B-431.01 shall be treated as follows:

History

(1935, c. 265, s. 6; 1987, c. 835, s. 1; 1995, c. 388, s. 2; 2005-429, s. 1.1; 2014-18, s. 1.1(c); 2014-115, s. 56.1; 2017-10, s. 2.9(b).)

Local Modification. - Durham: 1993, c. 227, s. 9; New Hanover: 1981, c. 960; Orange: 1993, c. 358, s. 14; 1995, c. 339, s. 2; city of Asheville: 1999, c. 206, s. 9; city of Durham: 1993, c. 227, s. 9; city of Gastonia: 1985 (Reg. Sess., 1986), c. 902, s. 8; 1991, c. 557, s. 1.

Effect of Amendments. - Session Laws 2005-429, s. 1.1, effective September 22, 2005, in subsection (d), deleted "in the State" following "industrial projects" and added the last five sentences.

Session Laws 2014-18, s. 1.1(c), effective July 1, 2014, in the second sentence of subsection (d), substituted "and that the business will receive a discretionary incentive for the project pursuant to Chapter 143B of the General Statutes" for "or a final decision not to do so and the business has communicated that commitment or decision to the State or local government agency involved with the project"; and added the third and fourth sentences.

Session Laws 2014-115, s. 56.1, effective August 11, 2014, in subsection (d), substituted "or the business has made a final decision not to do so, of which the State or local government agency involved with the project knows or should know" for "and that the business will receive a discretionary incentive for the project pursuant to Chapter 143B of the General Statutes" in the second sentence; deleted the third and fourth sentences, which pertained to discretionary incentives for business projects; and added the second paragraph.

Session Laws 2017-10, s. 2.9(b), effective July 1, 2017, substituted the present section heading for the former, which read: "Inspection and examination of records."; added subsection (a1); in subsection (c), substituted "cost of such separation" for "cost of such separation on the following schedule," and deleted "State agencies after June 30, 1996; Municipalities with populations of 10,000 or more, counties with populations of 25,000 or more, as determined by the 1990 U.S. Census, and public hospitals in those counties, after June 30, 1997; Municipalities with populations of less than 10,000, counties with populations of less than 25,000, as determined by the 1990 U.S. Census, and public hospitals in those counties, after June 30, 1998; Political subdivisions and their agencies that are not otherwise covered by this schedule, after June 30, 1998"; and substituted "subsections (a) and (a1)" for "subsection (a)" in subsection (f).

Legal Periodicals. - For comment on public access to government-held records, see 55 N.C.L. Rev. 1187 (1977).

For note on the public's access to public records, see 60 N.C.L. Rev. 853 (1982).

For comment, "You Can't Always Get What You Want: A Look at North Carolina's Public Records Law," see 72 N.C.L. Rev. 1527 (1994).

For article, "Outlawed and Exiled: Zero Tolerance and Second Generation Race Discrimination in Public Schools," see 29 N.C. Cent. L.J. 147 (2007).

For article, "Fired by Liars: Due Process Implications in the Recent Changes to North Carolina's Public Disclosure Laws," see 89 N.C. L. Rev. 2228 (2011).

CASE NOTES

"Any Person" Includes Corporation. - The General Assembly did not intend to exclude corporate entities from the scope of the phrase "any person" in this section. Advance Publications, Inc. v. City of Elizabeth City, 53 N.C. App. 504, 281 S.E.2d 69 (1981).

When a county employee wrote to the board of county commissioners about the employee's experience working with the county medical director, when the board was considering whether to renew the director's contract, and recommended another person for the director's job and discussed the employee's interaction with the board regarding the board's decision-making process, disclosure of those parts of the letter discussing the employee's experience working with the director were exempt from disclosure because they were any information in any form gathered by the county with respect to the employee relating to the employee's performance, under G.S. 153A-98(a), as they discussed the employee's ability to work with the director and related to the employee's performance as a county employee. News Reporter Co. v. Columbus County, 184 N.C. App. 512, 646 S.E.2d 390 (2007).

Automated Criminal/Infraction System (ACIS) database was subject to public disclosure because ACIS was a public record in the custody of the Administrative Office of the Courts (AOC), which created, maintained, and controlled ACIS and was the only entity with the ability to copy the database; the clerks of court acted at the direction of the AOC to create an entirely new and distinct public record, to wit, ACIS. LexisNexis Risk Data Mgmt. v. N.C. Admin. Office of the Courts, 232 N.C. App. 427, 754 S.E.2d 223 (2014).

Draft reports of individual members of an investigative Commission were subject to disclosure under the Public Records Act. News & Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992).

Courts have jurisdiction to issue injunctions to prevent the disclosure of documents which are exempt from disclosure under the Public Records Act. North Carolina Elec. Membership Corp. v. North Carolina Dep't of Economic & Community Dev., 108 N.C. App. 711, 425 S.E.2d 440 (1993).

SBI Reports That Become Part of Public Agency's Records. - When State Bureau of Investigation investigative reports become part of the records of a public agency subject to the Public Records Act, they are protected only to the extent that agency's records are protected. News & Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992).

When the State Bureau of Investigation submitted investigative reports to an investigative Commission appointed by the president of The University of North Carolina system of higher education, they became Commission records. As such they were subject to the Public Records Act and had to be disclosed to the same extent that other Commission materials had to be disclosed under that law. News & Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992).

Custodian Must Be Sued In Official Capacity. - G.S. 132-6(a) provides that a custodian of public records has a statutory duty to permit reasonable inspection of those records by the public. In order to compel an unresponsive custodian to fulfill this statutory duty, a party must sue the custodian of those records in the custodian's official capacity. Cline v. Hoke, 238 N.C. App. 16, 766 S.E.2d 861 (2014).

Trial court properly dismissed a former district attorney's action against the assistant director of the North Carolina Administrative Office of the Courts (AOC) in his individual capacity where the attorney wanted to sue the assistant director as a custodian of the AOC's public records. Cline v. Hoke, 238 N.C. App. 16, 766 S.E.2d 861 (2014).

Preliminary Injunction. - Order granting an attorney and her law firm a preliminary injunction compelling the disclosure of unemployment hearings information was vacated because it did not mention the federal regulations concerning the confidentiality of unemployment insurance information and their bearing, if any, on the public records claim; such analysis would be necessary before finding whether the attorney and law firm had a likelihood of success on the merits. Wilson v. N.C. DOC, 239 N.C. App. 456, 768 S.E.2d 360 (2015).

Cited in In re Decision of the State Bd. of Elections v. N.C. Bd. of Elections, 153 N.C. App. 804, 570 S.E.2d 897 (2002), cert. denied, 356 N.C. 671, 577 S.E.2d 114 (2003); MCI Constr., LLC v. Hazen & Sawyer, P.C., 213 F.R.D. 268 (M.D.N.C. 2003); McLaughlin v. Bailey, 240 N.C. App. 159, 771 S.E.2d 570 (2015), appeal, dismissed, 368 N.C. 284, 775 S.E.2d 835, 2015 N.C. LEXIS 713 (2015), aff'd, 368 N.C. 618, 781 S.E.2d 23, 2016 N.C. LEXIS 28 (2016); LexisNexis Risk Data Mgmt. v. N.C. Admin. Office of the Courts, 368 N.C. 180, 775 S.E.2d 651 (2015); Brooksby v. N.C. Admin. Office of the Courts, 248 N.C. App. 471, 789 S.E.2d 540 (2016).

Opinions of Attorney General

Test scores and applications for licensure and related materials received by the North Carolina Board for Licensing Geologists are not subject to public inspection and examination under this section. See opinion of the Attorney General to Charles H. Gardner, Dir., Division of Land Resources Department of Environment, Health, and Natural Resources [now the Department of Environment and Natural Resources], 60 N.C.A.G. 76 (1991).

Licensure Procedures. - The application and other information obtained during the Private Protective Services Board's licensure procedure which are not otherwise exempt by law are public records subject to public inspection and examination under this section. See opinion of Attorney General to W. A. "Doc" Hoggard, III PPS Board Administrator Private Protective Services Board, 1997 N.C.A.G. 50 (8/15/97).

§ 132-6.1. Electronic data-processing and computer databases as public records.

Databases purchased, leased, created, or otherwise acquired by every public agency containing public records shall be designed and maintained in a manner that does not impair or impede the public agency's ability to permit the public inspection and examination of public records and provides a means of obtaining copies of such records. Nothing in this subsection shall be construed to require the retention by the public agency of obsolete hardware or software.
Notwithstanding G.S. 132-6.2(a), a public agency may satisfy the requirement under G.S. 132-6 to provide access to public records in computer databases by making public records in computer databases individually available online in a format that allows a person to view the public record and print or save the public record to obtain a copy. A public agency that provides access to public records under this subsection is not required to provide access to the public records in the computer database in any other way; provided, however, that a public agency that provides access to public records in computer databases shall also allow inspection of any of such public records that the public agency also maintains in a nondigital medium.
Repealed by Session Laws 2017-10, s. 2.9(a), effective July 1, 2017.
Nothing in this section shall require a public agency to create a computer database that the public agency has not otherwise created or is not otherwise required to be created. Nothing in this section requires a public agency to disclose security features of its electronic data processing systems, information technology systems, telecommunications networks, or electronic security systems, including hardware or software security, passwords, or security standards, procedures, processes, configurations, software, and codes.
The following definitions apply in this section:
1. Computer database. - A structured collection of data or documents residing in a database management program or spreadsheet software.
2. Computer hardware. - Any tangible machine or device utilized for the electronic storage, manipulation, or retrieval of data.
3. Computer program. - A series of instructions or statements that permit the storage, manipulation, and retrieval of data within an electronic data-processing system, together with any associated documentation. The term does not include the original data, or any analysis, compilation, or manipulated form of the original data produced by the use of the program or software.
4. Computer software. - Any set or combination of computer programs. The term does not include the original data, or any analysis, compilation, or manipulated form of the original data produced by the use of the program or software.
5. Electronic data-processing system. - Computer hardware, computer software, or computer programs or any combination thereof, regardless of kind or origin.
6. Media or medium - The physical medium on which information is stored in recoverable form.

History

(1995, c. 388, s. 3; 2000-71, s. 1; 2002-159, s. 35(i); 2017-10, s. 2.9(a).)

Effect of Amendments. - Session Laws 2017-10, s. 2.9(a), effective July 1, 2017, inserted "and computer databases as public" in the section heading; rewrote subsection (a), which read: "After June 30, 1996, no public agency shall purchase, lease, create, or otherwise acquire any electronic data processing system for the storage, manipulation, or retrieval of public records unless it first determines that the system will not impair or impede the agency's ability to permit the public inspection and examination, and to provide electronic copies of such records. Nothing in this subsection shall be construed to require the retention by the public agency of obsolete hardware or software"; added subsection (a1); deleted subsection (b); and added subdivision (d)(6).

CASE NOTES

Cited in LexisNexis Risk Data Mgmt. v. N.C. Admin. Office of the Courts, 232 N.C. App. 427, 754 S.E.2d 223 (2014).

Opinions of Attorney General

Computer software developed by the State with the assistance of a private contractor is not a "record," and its disclosure may cause a breach in software security inconsistent with this section. See opinion of Attorney General to Commissioner Janice Faulkner, North Carolina Division of Motor Vehicles, 1998 N.C.A.G. 25 (5/28/98).

The Employment Security Commission was not required to replace confidential social security numbers with a non-identifying code in order to allow the analysis of data in the Common Follow-Up System without revealing confidential, personally identifiable information. See opinion of Attorney General to Mr. T.S. Whitaker, Deputy Chairman for Programs, Employment Security Commission of N.C. 1999 N.C. AG LEXIS 26 (9/20/99).

Confidentiality of Security Features - Members of the Information Resources Management Commission, or their delegates, who are representatives of other agencies may be present at the committee meeting during which information will be reported about audits of the security practices of information technology systems in specific agencies; the presence of these representatives does not waive the confidentiality of the security features of the systems under subsection (c) of this section. See opinion of Attorney General to Beverly Eaves Perdue, Lieutenant Governor, 2002 N.C.A.G. 28 (11/8/02).

§ 132-6.2. Provisions for copies of public records; fees.

Persons requesting copies of public records may elect to obtain them in any and all media in which the public agency is capable of providing them. No request for copies of public records in a particular medium shall be denied on the grounds that the custodian has made or prefers to make the public records available in another medium. The public agency may assess different fees for different media as prescribed by law.
Persons requesting copies of public records may request that the copies be certified or uncertified. The fees for certifying copies of public records shall be as provided by law. Except as otherwise provided by law, no public agency shall charge a fee for an uncertified copy of a public record that exceeds the actual cost to the public agency of making the copy. For purposes of this subsection, "actual cost" is limited to direct, chargeable costs related to the reproduction of a public record as determined by generally accepted accounting principles and does not include costs that would have been incurred by the public agency if a request to reproduce a public record had not been made. Notwithstanding the provisions of this subsection, if the request is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved, or if producing the record in the medium requested results in a greater use of information technology resources than that established by the agency for reproduction of the volume of information requested, then the agency may charge, in addition to the actual cost of duplication, a special service charge, which shall be reasonable and shall be based on the actual cost incurred for such extensive use of information technology resources or the labor costs of the personnel providing the services, or for a greater use of information technology resources that is actually incurred by the agency or attributable to the agency. If anyone requesting public information from any public agency is charged a fee that the requester believes to be unfair or unreasonable, the requester may ask the State Chief Information Officer or his designee to mediate the dispute.
Persons requesting copies of computer databases may be required to make or submit such requests in writing. Custodians of public records shall respond to all such requests as promptly as possible. If the request is granted, the copies shall be provided as soon 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.
Nothing in this section shall be construed to require a public agency to respond to requests for copies of public records outside of its usual business hours.
Nothing in this section shall be construed to require a public agency to respond to a request for a copy of a public record by creating or compiling a record that does not exist. If a public agency, as a service to the requester, voluntarily elects to create or compile a record, it may negotiate a reasonable charge for the service with the requester. Nothing in this section shall be construed to require a public agency to put into electronic medium a record that is not kept in electronic medium.

History

(1995, c. 388, s. 3; 2004-129, s. 38.)

Effect of Amendments. - Session Laws 2004-129, s. 38, effective July 1, 2004, substituted "State Chief Information Officer or his designee" for "Information Resource Management Commission" in subsection (b).

Legal Periodicals. - For article, "Fired by Liars: Due Process Implications in the Recent Changes to North Carolina's Public Disclosure Laws," see 89 N.C.L. Rev. 2228 (2011).

CASE NOTES

In Custody. - Trial court did not err in holding that the records the newspaper sought, with limited exceptions, were public records that had to be made available by the town for public inspection and copying; the town could not assert that because the town attorneys, and not the town itself, possessed the records that the records were not public records, as the town attorneys were an agency or subdivision of the town, were public officers, and a ruling otherwise would mean that a town could give records to its town attorneys to shield what otherwise would be public records from disclosure. Womack Newspapers, Inc. v. Town of Kitty Hawk, 181 N.C. App. 1, 639 S.E.2d 96 (2007).

Reasonable Accommodations. - Trial court properly awarded the North Carolina Administrative Office of the Courts and its officials (the defendants) summary judgment on a claim under the North Carolina Public Records Act by a Utah real estate company and its employees (the plaintiffs) because, while the plaintiffs were not allowed to access the clerk's office on the explicit terms they requested, they failed to forecast evidence of a prima facie case under the Public Records Act and failed to show that access to or copies of the requested public records was denied since the defendants made reasonable accommodations to allow the plaintiffs access to the documents in a timely manner. Brooksby v. N.C. Admin. Office of the Courts, 248 N.C. App. 471, 789 S.E.2d 540 (2016).

Opinions of Attorney General

A governmental entity is not required to record its 800 megahertz radio communications. See opinion of Attorney General to Mr. J. Mark Payne, Johnston County Attorney, 2002 N.C. AG LEXIS 3 (1/22/02).

§ 132-7. Keeping records in safe places; copying or repairing; certified copies.

Insofar as possible, custodians of public records shall keep them in fireproof safes, vaults, or rooms fitted with noncombustible materials and in such arrangement as to be easily accessible for convenient use. All public records should be kept in the buildings in which they are ordinarily used. Record books should be copied or repaired, renovated or rebound if worn, mutilated, damaged or difficult to read. Whenever any State, county, or municipal records are in need of repair, restoration, or rebinding, the head of such State agency, department, board, or commission, the board of county commissioners of such county, or the governing body of such municipality may authorize that the records in need of repair, restoration, or rebinding be removed from the building or office in which such records are ordinarily kept, for the length of time required to repair, restore, or rebind them. Any public official who causes a record book to be copied shall attest it and shall certify on oath that it is an accurate copy of the original book. The copy shall then have the force of the original.

History

(1935, c. 265, s. 7; 1951, c. 294.)

Legal Periodicals. - For comment, "You Can't Always Get What You Want: A Look at North Carolina's Public Records Law," see 72 N.C.L. Rev. 1527 (1994).

§ 132-8. Assistance by and to Department of Natural and Cultural Resources.

The Department of Natural and Cultural Resources shall have the right to examine into the condition of public records and shall give advice and assistance to public officials in the solution of their problems of preserving, filing and making available the public records in their custody. When requested by the Department of Natural and Cultural Resources, public officials shall assist the Department in the preparation of an inclusive inventory of records in their custody, to which shall be attached a schedule, approved by the head of the governmental unit or agency having custody of the records and the Secretary of Natural and Cultural Resources, establishing a time period for the retention or disposal of each series of records. Upon the completion of the inventory and schedule, the Department of Natural and Cultural Resources shall (subject to the availability of necessary space, staff, and other facilities for such purposes) make available space in its Records Center for the filing of semicurrent records so scheduled and in its archives for noncurrent records of permanent value, and shall render such other assistance as needed, including the microfilming of records so scheduled.

History

(1935, c. 265, s. 8; 1943, c. 237; 1959, c. 68, s. 2; 1973, c. 476, s. 48; 2015-241, ss. 14.30(s), (t).)

Editor's Note. - Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2015-241, s. 14.30(s), (t), effective July 1, 2015, substituted "Department of Natural and Cultural Resources" for "Department of Cultural Resources" in the section heading and throughout the section; and substituted "Secretary of Natural and Cultural Resources" for "Secretary of Cultural Resources" in the second sentence.

Legal Periodicals. - For comment, "You Can't Always Get What You Want: A Look at North Carolina's Public Records Law," see 72 N.C.L. Rev. 1527 (1994).

§ 132-8.1. Records management program administered by Department of Natural and Cultural Resources; establishment of standards, procedures, etc.; surveys.

A records management program for the application of efficient and economical management methods to the creation, utilization, maintenance, retention, preservation, and disposal of official records shall be administered by the Department of Natural and Cultural Resources. It shall be the duty of that Department, in cooperation with and with the approval of the Department of Administration, to establish standards, procedures, and techniques for effective management of public records, to make continuing surveys of paper work operations, and to recommend improvements in current records management practices including the use of space, equipment, and supplies employed in creating, maintaining, and servicing records. It shall be the duty of the head of each State agency and the governing body of each county, municipality and other subdivision of government to cooperate with the Department of Natural and Cultural Resources in conducting surveys and to establish and maintain an active, continuing program for the economical and efficient management of the records of said agency, county, municipality, or other subdivision of government.

History

(1961, c. 1041; 1973, c. 476, s. 48; 2015-241, s. 14.30(s).)

Editor's Note. - Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2015-241, s. 14.30(s), effective July 1, 2015, substituted "Department of Natural and Cultural Resources" for "Department of Cultural Resources" in the section heading, and the first and last sentences.

CASE NOTES

Cited in Cline v. Hoke, 238 N.C. App. 16, 766 S.E.2d 861 (2014).

§ 132-8.2. Selection and preservation of records considered essential; making or designation of preservation duplicates; force and effect of duplicates or copies thereof.

In cooperation with the head of each State agency and the governing body of each county, municipality, and other subdivision of government, the Department of Natural and Cultural Resources shall establish and maintain a program for the selection and preservation of public records considered essential to the operation of government and to the protection of the rights and interests of persons, and, within the limitations of funds available for the purpose, shall make or cause to be made preservation duplicates or designate as preservation duplicates existing copies of such essential public records. Preservation duplicates shall be durable, accurate, complete and clear, and such duplicates made by a photographic, photostatic, microfilm, micro card, miniature photographic, or other process which accurately reproduces and forms a durable medium for so reproducing the original shall have the same force and effect for all purposes as the original record whether the original record is in existence or not. A transcript, exemplification, or certified copy of such preservation duplicate shall be deemed for all purposes to be a transcript, exemplification, or certified copy of the original record. Such preservation duplicates shall be preserved in the place and manner of safekeeping prescribed by the Department of Natural and Cultural Resources.

History

(1961, c. 1041; 1973, c. 476, s. 48; 2015-241, s. 14.30(s).)

Editor's Note. - Session Laws 2013-360, s. 7.11(a)-(c), provides: "(a) The State Chief Information Officer (CIO) shall investigate the feasibility of creating an enterprise data archiving system for State agencies that will (i) allow for the effective management of data from multiple sources; (ii) provide for efficient, timely responses to discovery requests and investigations; and (iii) ensure real-time State agency access to and use of archived files. The system shall be financed only by savings accrued as a result of the project.

"(b) By December 1, 2013, the State CIO shall report to the Joint Legislative Oversight Committee on Information Technology and the Fiscal Research Division on the results of the feasibility assessment.

"(c) Subsequent to making the report required by this section, and only if the State CIO has developed a business case that is validated by the Office of State Budget and Management, then the State CIO may initiate the development of an enterprise data archiving system."

Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'"

Session Laws 2013-360, s. 38.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium."

Session Laws 2013-360, s. 38.5 is a severability clause.

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

§ 132-9. Access to 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 if the person has complied with G.S. 7A-38.3E. 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 courts.
In an action to compel disclosure of public records which have been withheld pursuant to the provisions of G.S. 132-6 concerning public records relating to the proposed expansion or location of particular businesses and industrial projects, the burden shall be on the custodian withholding the records to show that disclosure would frustrate the purpose of attracting that particular business or industrial project.
In any action brought pursuant to this section in which a party successfully compels the disclosure of public records, the court shall allow a party seeking disclosure of public records who substantially prevails to recover its reasonable attorneys' fees if attributed to those public records. The court may not assess attorneys' fees against the governmental body or governmental unit if the court finds that the governmental body or governmental unit acted in reasonable reliance on any of the following:
1. A judgment or an order of a court applicable to the governmental unit or governmental body.
2. The published opinion of an appellate court, an order of the North Carolina Business Court, or a final order of the Trial Division of the General Court of Justice.
3. A written opinion, decision, or letter of the Attorney General.
If the court determines that an action brought pursuant to this section was filed in bad faith or was frivolous, the court shall assess a reasonable attorney's fee against the person or persons instituting the action and award it to the public agency as part of the costs.
Notwithstanding subsection (c) of this section, the court may not assess attorneys' fees against a public hospital created under Article 2 of Chapter 131E of the General Statutes if the court finds that the action was brought by or on behalf of a competing health care provider for obtaining information to be used to gain a competitive advantage.

Any attorneys' fees assessed against a public agency under this section shall be charged against the operating expenses of the agency; provided, however, that the court may order that all or any portion of any attorneys' fees so assessed 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 this Article. No order against any public employee or public official shall issue in any case where the public employee or public official seeks the advice of an attorney and such advice is followed.

History

(1935, c. 265, s. 9; 1975, c. 787, s. 3; 1987, c. 835, s. 2; 1995, c. 388, s. 4; 2005-332, s. 2; 2010-169, s. 21(c).)

Cross References. - As to trade secret and confidentiality determination and protections, see G.S. 113-391.1.

Effect of Amendments. - Session Laws 2005-332, s. 2, effective October 1, 2005, in subsection (c), combined the former introductory paragraph and subdivisions (1) and (2) into the present first paragraph, and rewrote it; and in subsection (d), substituted "shall assess" for "may, in its discretion, assess."

Session Laws 2010-169, s. 21(c), effective October 1, 2010, and applicable to actions filed on or after that date, added "if the person has complied with G.S. 7A-38.3E" at the end of the first sentence of subsection (a); rewrote the first paragraph of subsection (c); and added subsection (e).

Legal Periodicals. - For comment on public access to government-held records, see 55 N.C.L. Rev. 1187 (1977).

For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).

For comment, "You Can't Always Get What You Want: A Look at North Carolina's Public Records Law," see 72 N.C.L. Rev. 1527 (1994).

CASE NOTES

The Public Records Act does not give a governmental agency the discretionary authority to decline to comply with an order for release of records to the public until a time when the agency has determined that release would be prudent or timely. North Carolina Press Ass'n v. Spangler, 94 N.C. App. 694, 381 S.E.2d 187, cert. denied, 325 N.C. 709, 388 S.E.2d 461 (1989).

The North Carolina Public Records Act does not appear to allow a government entity to bring a declaratory judgment action; only the person making the public records request is entitled to initiate judicial action to seek enforcement of its request. McCormick v. Hanson Aggregates Southeast, Inc., 164 N.C. App. 459, 596 S.E.2d 431 (2004).

A suit brought to compel the disclosure of public records under this section is not a special proceeding, but is a civil action to which the Rules of Civil Procedure apply and which requires service of a summons to commence the action. Charns v. Brown, 129 N.C. App. 635, 502 S.E.2d 7, cert. denied, 349 N.C. 228, 515 S.E.2d 701 (1998).

Contract to Buy Practice Not Competitive Health Care Information. - Because nothing suggested that other hospitals or entities were competing for a doctor's medical practice or that a medical center's contract to buy the doctor's practice contained "financial terms" or health care information directly related to financial terms, the contract was not confidential as "competitive health care information" pursuant to G.S. 131E-97.3. Carter-Hubbard Publ'g Co. v. WRMC Hosp. Operating Corp., 178 N.C. App. 621, 633 S.E.2d 682 (2006), aff'd, 361 N.C. 233, 641 S.E.2d 301 (2007).

Public Release of Clemency Records. - Subject matter jurisdiction existed over the question of whether the Governor was required to release certain records relating to applications for clemency pursuant to the North Carolina Public Records Law because resolving the relevant issues required the court to exercise its fundamental responsibility to determine the proper meaning of N.C. Const., Art. III, § 5(6); the case did not raise a political question by requiring the court to intrude upon the Governor's clemency powers, but only required the court to identify where to draw the line between the Executive Branch and the Legislature with respect to clemency, given the separation of powers doctrine. News & Observer Publ'g Co. v. Easley, 182 N.C. App. 14, 641 S.E.2d 698, review dismissed, review denied, 361 N.C. 429, 648 S.E.2d 508 (2007).

Automated Criminal/Infraction System Database. - Court of appeals erred by concluding that the Public Records Act provided the legal basis for granting corporations' request for a copy of the Automated Criminal/Infraction System database and that G.S. 7A-109 was inapposite to an analysis of access to such records because G.S. 7A-109 controlled the request for the records. LexisNexis Risk Data Mgmt. v. N.C. Admin. Office of the Courts, 368 N.C. 180, 775 S.E.2d 651 (2015).

Student Disciplinary Records. - University administrators had to disclose results of student disciplinary proceedings, except violation dates, because (1) the Family Educational Rights and Privacy Act (FERPA) did not give the administrators absolute discretion over whether to disclose such information that FERPA did not protect from disclosure, and (2) FERPA did not expressly or implicitly pre-empt the Public Records Act. DTH Media Corp. v. Folt, 259 N.C. App. 61, 816 S.E.2d 518 (2018), aff'd, 374 N.C. 292, 841 S.E.2d 251, 2020 N.C. LEXIS 368 (2020).

Cited in Carnahan v. Reed, 53 N.C. App. 589, 281 S.E.2d 408 (1981); Housing Auth. v. Montgomery, 55 N.C. App. 422, 286 S.E.2d 114 (1982); North Carolina State Bd. of Registration for Professional Eng'rs & Land Surveyors v. FTC, 615 F. Supp. 1155 (E.D.N.C. 1985); Shella v. Moon, 125 N.C. App. 607, 481 S.E.2d 363 (1997); Multimedia Publishing of N.C. Inc. v. Henderson County, 136 N.C. App. 567, 525 S.E.2d 786, cert. denied, 351 N.C. 474, 543 S.E.2d 492 (2000); In re Summons Issued to Ernst & Young, LLP, 191 N.C. App. 668, 663 S.E.2d 921 (2008), rev'd in part on other grounds, and remanded, 363 N.C. 612, 684 S.E.2d 151, 2009 N.C. LEXIS 897 (2009); Jackson v. Charlotte Mecklenburg Hosp. Auth., 238 N.C. App. 351, 768 S.E.2d 23 (2014); Times News Publ'g Co. v. Alamance-Burlington Bd. of Educ., 242 N.C. App. 375, 774 S.E.2d 922 (2015).

§ 132-10. Qualified exception for geographical information systems.

Geographical information systems databases and data files developed and operated by counties and cities are public records within the meaning of this Chapter. The county or city shall provide public access to such systems by public access terminals or other output devices. Upon request, the county or city shall furnish copies, in documentary or electronic form, to anyone requesting them at reasonable cost. As a condition of furnishing an electronic copy, whether on magnetic tape, magnetic disk, compact disk, or photo-optical device, a county or city may require that the person obtaining the copy agree in writing that the copy will not be resold or otherwise used for trade or commercial purposes. For purposes of this section, publication or broadcast by the news media, real estate trade associations, or Multiple Listing Services operated by real estate trade associations shall not constitute a resale or use of the data for trade or commercial purposes and use of information without resale by a licensed professional in the course of practicing the professional's profession shall not constitute use for a commercial purpose. For purposes of this section, resale at cost by a real estate trade association or Multiple Listing Services operated by a real estate trade association shall not constitute a resale or use of the data for trade or commercial purposes.

History

(1995, c. 388, s. 5; 1997-193, s. 1.)

Editor's Note. - Session Laws 1995, c. 151 which made a qualified public records exception from the public records act for the Geographical information systems of the cities of Concord, Greensboro, High Point and Salisbury and Cabarrus, Cumberland and Gulford Counties was essentially the same as this section.

§ 132-11. Time limitation on confidentiality of records.

Notwithstanding any other provision of law, all restrictions on access to public records shall expire 100 years after the creation of the record.
Subsection (a) of this section shall apply to any public record in existence at the time of, or created after, August 18, 2015.
No provision of this section shall be construed to authorize or require the opening of any record that meets any of the following criteria:
1. Is ordered to be sealed by any state or federal court, except as provided by that court.
2. Is prohibited from being disclosed under federal law, rule, or regulation.
3. Contains federal Social Security numbers.
4. Is a juvenile, probationer, parolee, post-releasee, or prison inmate record, including medical and mental health records.
5. Contains detailed plans and drawings of public buildings and infrastructure facilities.
For purposes of this section, the custodian of the record shall be the Department of Natural and Cultural Resources or other agency in actual possession of the record.

History

(2015-218, s. 3; 2015-241, s. 14.30(c).)

Editor's Note. - Session Laws 2015-241, s. 14.30(c), provides: "The Department of Environment and Natural Resources is renamed the Department of Environmental Quality. All references to the Department of Environment and Natural Resources or the Department of Cultural Resources in acts of the 2015 General Assembly taking effect on or after the effective date of this section and in the Committee Report described in Section 33.2 of this act shall be construed to refer to the Department of Environmental Quality or the Department of Natural and Cultural Resources, respectively. References to duties or requirements of the Department of Environment and Natural Resources with respect to entities transferred under subsections (a) and (b) of this section shall be construed as duties or requirements of the Department of Natural and Cultural Resources as reorganized by this section." Under this authority, "Department of Natural and Cultural Resources" was substituted for "Department of Cultural Resources" in subsection (d).