Top Ten (or so) Things to Remember About the N.C. Public Records Law

1. The requester has the right to specify the format in which he wants a public record produced, provided it exists in that format. N.C. Gen. Stat. § 132-6.2.

2. You may only be charged the actual cost for reproductions of public records. That cost may include such items as paper, a computer disk, or the like. It may not include overhead items, such as pro rated charges for staff time, equipment rental or office space. N.C. Gen. Stat. § 132-6.2.

3. Criminal investigative records are not public records. However, the statute sets forth six categories of information that are public as a matter of law. Unless the law enforcement agency obtains a court order sealing the information, the following are public:

The time, date, location, and nature of a violation or apparent violation of the law reported to a public law enforcement agency.
The name, sex, age, address, employment, and alleged violation of law of a person arrested, charged, or indicted.
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.
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 name, address, telephone number, or other information that may identify the caller, victim, or witness.
The contents of communications between or among employees of public law enforcement agencies that are broadcast over the public airways.
The name, sex, age, and address of a complaining witness.
N.C. Gen. Stat. § 132-1.4(c).

4. “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.” N.C. Gen. Stat. § 132-1.4(f). This means that law enforcement agencies cannot deny you access to information or documents by stating “That’s part of the investigation.” If it started as a public record, it remains a public record even when it’s placed in “the criminal investigation file.”

5. Search warrants and arrest warrants are public records once they have been served and “returned.” Indictments and criminal summons are public records from the time they are created. These documents may only be withheld if a court orders them sealed.

6. Under federal and North Carolina law, the records of the Division of Motor Vehicles may be released to only a limited group of individuals. That group includes private investigators and telemarketers but does not include reporters seeking the information for publication. However, newspapers may still seek and obtain the information for research purposes.

The statute applies only to the release of records by the DMV: “The Division shall disclose personal information contained in motor vehicle records in accordance with the federal Driver’s Privacy Protection Act of 1994, as amended, 18 U.S.C. §§ 2721, et seq.” N.C. Gen. Stat. § 20-43.1. Therefore, do not accept a denial from law enforcement agencies that driving or motor vehicle records are not public.

7. The law does not set out a specific amount of time in which public agents must respond to public records requests. Rather, the records must be made available “as promptly as possible.” N.C. Gen. Stat. § 132-6.

8. Public agencies may not set up gatekeepers of information who must consider or approve the disclosure of public records. In Dawes v. Buncombe County Board of Commissioners, 99 CVS 03497, Buncombe County Superior Court Division (1999), the court found that “by its own express terms does not permit for the interposition of a ‘gatehouse’ or ‘overseer’ between members of the public who desire access to public records and the custodians of public records.” The term “custodian of public records” as contained in North Carolina General Statutes Section 132-6(a) “refers to the individual who in fact has possession of records, and not to the County Manager other than as to those records which she does in fact have personal possession of, and the Defendant Greene cannot therefore legally make herself in effect a ‘Gatehouse’ for access to public records as she has attempted to in the implementation of the County’s policy as to these Plaintiffs.”

9. Public records are public from the time they are created. They need not be final, and the fact that a record is in draft form is irrelevant to its status as a public record.

10. The fact that a document has confidential information commingled with non-confidential is irrelevant. The public agency bears the responsibility and expense of removing the confidential information and releasing the non-confidential. N.C. Gen. Stat. § 132-6(c).

11. “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.” N.C. Gen. Stat. § 132-6(b).

12. A public agency must disclose the findings and information related to a child fatality or near fatality if a person is criminally charged with having caused the child fatality or near fatality or the district attorney has certified that a person would have been charged had he not already died. A child fatality is the death of a child from suspected abuse, neglect or maltreatment, and a near fatality is a case in which a child is in serious or critical condition as the result of sickness or injury caused by suspected abuse, neglect or maltreatment. In such a case, the public agency must make available:

(a) The dates, outcomes and results of any actions taken or services rendered.

(b) The results of any review by the State Child Fatality Prevention Team, a local child fatality prevention team, a local community child protection team, the Child Fatality Task Force, or any public agency.

(c) Confirmation of the receipt of all reports, accepted or not accepted by the county department of social services, for investigation of suspected child abuse, neglect, or maltreatment, including confirmation that investigators were conducted, the results of the investigations, a description of the conduct of the most recent investigation and the services rendered, and a statement of basis for the departments’s decision.
N.C. Gen. Stat. § 7B-2902.

A public agency has five days in which to respond to a request for the findings and information. In that five days, the public agency shall consult with the district attorney to determine if release of the information:

(1) Is not authorized by subsections (a) and (b) of this section;

(2) Is likely to cause mental or physical harm or danger to a minor child residing in the deceased or injured child’s household;

(3) Is likely to jeopardize the State’s ability to prosecute the defendant;

(4) Is likely to jeopardize the defendant’s right to a fair trial;

(5) Is likely to undermine an ongoing or future criminal investigation; or

(6) Is not authorized by federal law and regulations.