May 25, 2017 Uncategorized

The latest legal position taken by the University of North Carolina would be shocking if the University had not taken outrageous legal positions in the past.  At one point the University claimed that a photograph taken by a professional photographer was in the public domain because it had been posted on the internet.  (Wrong.)  At another point the University said that parking tickets of athletes were “education records” covered by the Family Educational Rights and Privacy Act.  (Again, wrong.)

Most recently, when a reporter asked a School of Government faculty member for emails he exchanged with a district attorney, the University took the position that “Under North Carolina General Statute 132-1.4 certain law enforcement records are not public records as defined by NCGS 132-1. There are no existing or responsive University records subject to disclosure under the North Carolina Public Records Act.  This request has been fully processed and is closed.”

Wait a minute.  What?  The reporter didn’t ask for records from a law enforcement agency.  He asked a UNC faculty member.  So the University is taking one of two positions.  First, they could be arguing that the faculty member – or the School of Government as a whole – is a law enforcement agency.  Or they could be arguing that they because the emails were exchanged with a law enforcement agency, they are secret.  Neither position is correct.

Law Enforcement Agencies.

The North Carolina Public Records Law has an exemption for certain (not all) records “compiled by public law enforcement agencies.”  By statute, “‘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.”  G.S.  § 132-1.4.

Has anyone or any court ever interpreted this provision, you ask?  Why yes, they have.  More than 10 years ago, the North Carolina Court of Appeals decided whether the Raleigh city attorney was a “public law enforcement agency.”  Because the statute is not all that hard to understand, the Court began by just quoting the statute.  Perhaps it is ironic that the Court next cited then-School of Government Professor David Lawrence’s treatise Public Records Law for North Carolina Local Governments 108 (Institute of Government 1997).

Relying on the statute and Professor Lawrence, and citing the Raleigh City Charter’s designation that “the City Attorney’s Office is responsible for investigating, preventing, and solving zoning violations,” the Court found that the City Attorney’s office was indeed a law enforcement agency.  McCormick v. Hanson Aggregates Se., Inc., 164 N.C. App. 459, 466, 596 S.E.2d 431, 435–36, writ denied, review denied, appeal dismissed, 359 N.C. 69, 603 S.E.2d 131 (2004)

So, what about the School of Government?  Not so much.  If you read the School’s self-description of mission and history, the School is dedicated to “to improve the lives of North Carolinians by engaging in practical scholarship that helps public officials and citizens understand and improve state and local government.”  The School claims to be “the largest university-based local government training, advisory, and research organization”  The website describes the School’s work fielding thousands of phone calls and emails a year, as well as extensive publishing.  The School also has a Master of Public Administration Program through which students can earn degrees.  What the website doesn’t list – and what the School does not do – is law enforcement.  The School is not engaged in “investigating, preventing, or solving violations of the law,” and their records are not exempt from disclosure under that statute.

In fact, in the 2009 edition of his Public Records Law book, Professor Lawrence provides a fairly exhaustive list of the kinds of agencies that might not look like law enforcement but could be:  “departments involved with code enforcement; animal control; arson investigations; utilities, if operating rules have been adopted by ordinance; zoning administration; environmental health; sedimentation control; housing or employment discrimination, if regulations have been adopted by ordinance; business license tax collection; and welfare fraud investigations.”  Anyone notice what’s missing from his list?  The School of Government.

Records Related to a Criminal Investigation.

Does it matter that the requested records – correspondence from a UNC faculty member – were received by a law enforcement agency? Do those emails become “records compiled by a law enforcement agency” wherever they reside?  No.  They might be shielded from public view in the hands of the DA.  They probably are.  But the criminal records exemption the Public Records Law provides, “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.”  So a request for records from a non-law-enforcement public agency is not impacted by a potential law enforcement investigation.  Think about it this way.  If for some reason a law enforcement agency made a request to the Register of Deeds for the deed to your home, that would not make the Register of Deeds a Law Enforcement Agency.  Nor would it remove your deed from the public record.  Again, former School of Government Professor Lawrence’s book is instructive.  He writes:  “The statutory provision [G.S. 132-1.49(f)] is most naturally read as prohibiting the law enforcement agency from attempting to seal the public record regardless of the location.”

Professor Lawrence is now retired.  I imagine he’s turning over in his hammock, happy he won’t be called upon to defend or explain this latest position taken by the University of North Carolina.

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