Public Records--exemptions--criminal investigation--criminal intelligence information
Although the trial court did not err in a declaratory judgment action by dismissing
plaintiffs' complaint seeking production of records of a criminal investigation or records of
criminal intelligence information conducted by defendant State Bureau of Investigation (SBI)
related to a fatal fire that occurred in a county jail, plaintiffs are entitled to release of any other
information classified as public records under N.C.G.S. §§ 132-1.4(c) and (k) as well as any
other public records not specifically exempted from disclosure, because: (1) the Public Records
Act under N.C.G.S. § 132-1 provides exemptions including that records of criminal
investigations conducted by public law enforcement agencies or records of criminal intelligence
information compiled by public law enforcement agencies are not public records; (2) exclusion
of these types of records protects confidentiality of government informants, protects investigative
techniques used by law enforcement agencies, and protects against the use of hearsay that
investigators often use for their opinions and conclusions; (3) if investigatory files were made
public subsequent to the termination of enforcement proceedings, the ability of any investigatory
body to conduct future investigations would be seriously impaired when few persons would
respond candidly to investigators if they feared that their remarks would become public record,
the investigative techniques of the investigating body would be disclosed to the general public,
and a person's right of privacy would be violated if their name was mentioned or accused of
wrongdoing in unverified or unverifiable hearsay statements of others included in such reports;
(4) the Public Records Act contains no exception for disclosure of records where an investigation
is complete; and (5) plaintiffs are neither criminal defendants nor civil litigants seeking discovery
of admissible evidence to be used in trial, but instead they sought access to the SBI records due
to their desire to know and publish the contents.
Kelly & Rowe, P.A., by James Gary Rowe, for plaintiff
appellants.
Attorney General Roy Cooper, by Special Deputy Attorney
General John H. Watters, for defendant appellee.
WYNN, Judge.
Plaintiffs Gannett Pacific Corporation and ChesapeakeTelevision, Inc. appeal from an order of the trial court dismissing
their complaint seeking production of records of a criminal
investigation conducted by Defendant North Carolina State Bureau of
Investigation (“the SBI”). Plaintiffs argue the records are not
statutorily protected from disclosure and should be released.
After careful consideration, we conclude Plaintiffs are not
entitled to release of the SBI's records of its criminal
investigation or criminal intelligence information. We further
conclude Plaintiffs are entitled to release of any other
information classified as public records under the North Carolina
General Statutes. We therefore affirm in part and reverse in part
the order of the trial court.
The underlying facts tend to show that on 3 February 2003,
Plaintiffs filed a declaratory judgment against the SBI in Buncombe
County Superior Court, seeking release of investigative records
related to a fatal fire that occurred at the Mitchell County Jail
in Bakersville, North Carolina on 3 May 2002. Plaintiffs alleged
that since investigation of the fire was complete and no further
investigation was pending, the SBI had “no just reason for
withholding from disclosure the records of the criminal
investigation” under North Carolina's Public Records Act.
Following the trial court's dismissal of their action under Rule
12(b)(6) of the Rules of Civil Procedure, Plaintiffs appealed.
____________________________________________________
The issue on appeal is whether Plaintiffs are entitled, under
our Public Records Act, to disclosure of documents relating to a
criminal investigation completed by the North Carolina State Bureauof Investigation. For the reasons stated herein, we conclude
Plaintiffs are not entitled to disclosure of the SBI's records of
its criminal investigation or criminal intelligence information at
issue, and the trial court therefore properly dismissed Plaintiffs'
complaint to the extent that it sought release of such documents.
Because Plaintiffs are statutorily entitled to any other
information in the possession of the SBI that qualifies as public
records under the Public Records Act, however, the trial court
erred in part in ruling Plaintiffs' complaint failed to state a
claim upon which relief could be granted.
The Public Records Act, codified in sections 132-1 et seq. of
the North Carolina General Statutes, “affords the public a broad
right of access to records in the possession of public agencies and
their officials.” Times-News Publishing Co. v. State of N.C., 124
N.C. App. 175, 177, 476 S.E.2d 450, 451-52 (1996), disc. review
denied, 345 N.C. 645, 483 S.E.2d 717 (1997); see also News and
Observer Publishing Co. v. Poole, 330 N.C. 465, 475, 412 S.E.2d 7,
13 (1992) (stating that the General Assembly's intent in enacting
the Public Records Act was to provide the public with liberal
access to public records). The Public Records Act permits public
access to all public records in an agency's possession “unless
either the agency or the record is specifically exempted from the
statute's mandate.” Times-News Publishing Co., 124 N.C. App. at
177, 476 S.E.2d at 452 (emphasis added). Under the Public Records
Act, “public records” include “all . . . material, regardless of
physical form or characteristics, made or received pursuant to law
or ordinance in connection with the transaction of public businessby any agency of North Carolina government or its subdivisions.”
N.C. Gen. Stat. § 132-1(a) (2003). Public records and information
compiled by North Carolina government agencies “are the property of
the people.” N.C. Gen. Stat. § 132-1(b) (2003). “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.” Id.
The Public Records Act contains various exemptions, however.
One such exemption provides that “[r]ecords of criminal
investigations conducted by public law enforcement agencies or
records of criminal intelligence information compiled by public law
enforcement agencies are not public records as defined by G.S. 132-
1.” N.C. Gen. Stat. § 132-1.4(a) (2003). “Public law enforcement
agencies” include “any State or local agency, force, department, or
unit responsible for investigating, preventing, or solving
violations of the law.” N.C. Gen. Stat. § 132-1.4(b)(3) (2003).
“Records of criminal investigations” are defined as “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.” N.C. Gen. Stat. § 132-1.4(b)(1) (2003). “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.” N.C. Gen. Stat. § 132-1.4(b)(2) (2003).
Because records of criminal investigations and records of
criminal intelligence information are not public records, a party
seeking disclosure of such records must seek release “by order of
a court of competent jurisdiction.” N.C. Gen. Stat. § 132-1.4(a).
For example, a criminal defendant may seek an order of the trial
court requiring disclosure of information compiled by public law
enforcement agencies pursuant to the discovery process governed by
Chapter 15A of the General Statutes. See N.C. Gen. Stat. § 132-
1.4(g) (2003). However, “[n]othing in [section 132-1.4] shall be
construed as requiring law enforcement agencies to disclose . . .
(1) [i]nformation that would not be required to be disclosed under
Chapter 15A of the General Statutes; or (2) [i]nformation that is
reasonably likely to identify a confidential informant.” N.C. Gen.
Stat. § 132-1.4(h) (2003).
Despite the above-stated exemption for records of criminal
investigations and intelligence information records, the following
information collected by law enforcement agencies qualifies as
public records:
(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 emergencytelephone 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.
(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.
N.C. Gen. Stat. § 132-1.4(c) (2003). In addition, “[t]he 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.” N.C. Gen.
Stat. § 132-1.4(k) (2003).
In the instant case, Plaintiffs requested the SBI produce for
their inspection the following documents:
1) A copy of the SBI report regarding the
May 3, fire at the Mitchell County jail
submitted to Mitchell County District
Attorney James Rusher in July 2002.
2) A copy of the SBI report regarding the
May 3 fire at the Mitchell County jail
submitted to Mr. Rusher in November 2002.
3) All supporting documentation from the
SBI's investigation into the Mitchell
County jail fire.
4) Any and all correspondence between Mr.
Rusher and the SBI regarding the Mitchell
County jail fire and the subsequent
investigation.
5) Any warrants obtained by investigators in
regards to the Mitchell County jail fire.
Plaintiffs further requested “all public records relating to the
investigation of the May 3, 2002 fire at the Mitchell County, North
Carolina jail.”
Plaintiffs are clearly entitled to any information defined as
public records under sections 132-1.4(c) and (k) of the General
Statutes, and any public records relating to the Mitchell County
fire not specifically exempted from disclosure that the SBI may or
may not possess. As Plaintiffs requested access to “all public
records,” which request the SBI categorically denied, Plaintiffs'
complaint stated a claim upon which relief could be granted. The
trial court therefore erred in part in granting the SBI's motion to
dismiss Plaintiffs' complaint. The burden is on the SBI to comply
with Plaintiffs' request by reviewing its records and releasing all
information relating to the Mitchell County fire defined as public
records. If, after reviewing its records, the SBI determines it
does not have custody of any information classified as public
records, denial of Plaintiffs' request may be appropriate. Before
this determination is made, however, dismissal of Plaintiffs'
complaint is premature.
More pertinently, however, Plaintiffs have consistently sought
disclosure of the SBI's criminal investigation records related to
the Mitchell County fire. Plaintiffs acknowledge that records of
criminal investigations and criminal intelligence information
records compiled by the SBI are not public records, but argue that
the exemption of such records from the Public Records Act should
not apply where no criminal prosecution has been or will be
undertaken, and where the SBI's investigation is complete. Plaintiffs urge this Court to adopt a “balancing approach” to
disclosure of records of criminal investigations which would allow
a reviewing court in each particular case to weigh the various
purposes for secrecy against the public need and right to
disclosure of the documents at issue. We are not persuaded.
The principles governing statutory construction are well
established: where the language of a statute is clear and
unambiguous, there is no room for judicial construction and the
courts must construe a statute using its plain meaning. Burgess v.
Your House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 136
(1990). Section 132-1.4(a) clearly and unambiguously provides that
any “[r]ecords of criminal investigations conducted by public law
enforcement agencies or records of criminal intelligence
information compiled by [the SBI] are not public records as defined
by G.S. 132-1.” N.C. Gen. Stat. § 132-1.4(a) (emphasis added).
Plaintiffs are therefore not entitled to disclosure of the records
as public records. Further, Plaintiffs have not alleged they are
entitled to disclosure of the records through any alternate
statutory grounds. For example, Plaintiffs have not alleged they
are parties to any criminal or civil action which might facilitate
disclosure of the records through the discovery processes contained
in Chapter 15A of the General Statutes or the North Carolina Rules
of Civil Procedure. We further note that “[c]ourts have given
almost universal recognition to certain reasons for excluding
police and investigative records from the operation of statutory
rights of public access.” News and Observer v. State; Co. of Wake
v. State; Murphy v. State, 312 N.C. 276, 282, 322 S.E.2d 133, 137-38 (1984). Such reasons include, but are not limited to the
following: (1) protection of confidentiality of government
informants; (2) protection of investigative techniques used by law
enforcement agencies; (3) criminal investigation reports contain
the opinions and conclusions of the investigators and may be based
on hearsay. See id. These justifications do not dissipate upon
conclusion of an investigation or where no actual prosecution takes
place. As noted by our Supreme Court,
“[i]t is clear that if investigatory files
were made public subsequent to the termination
of enforcement proceedings, the ability of any
investigatory body to conduct future
investigations would be seriously impaired.
Few persons would respond candidly to
investigators if they feared that their
remarks would become public record after the
proceedings. Further, the investigative
techniques of the investigating body would be
disclosed to the general public.” An equally
important reason for prohibiting access to
police and investigative reports arises from
recognition of the rights of privacy of
individuals mentioned or accused of wrongdoing
in unverified or unverifiable hearsay
statements of others included in such reports.
Id. at 282-83, 322 S.E.2d at 138 (citations omitted) (quoting Aspin
v. Department of Defense, 491 F. 2d 24, 30 (D.C. Cir. 1973)).
In their complaint, Plaintiffs specifically sought disclosure
of the records “pursuant to the Public Records Act.” The Public
Records Act does not provide for disclosure of records of criminal
investigations or criminal intelligence information, however, and
we may not circumvent the plain language of the statute. While we
acknowledge that Plaintiffs' “balancing approach” might better
serve the public interest where criminal investigations are
complete and no action is pending, we are but jurists and notmembers of the General Assembly. As currently enacted, the Public
Records Act contains no exception for disclosure of records where
an investigation is complete. “Courts may not extend a statute to
cover cases not within its scope or purpose, however meritorious
they may be.” Burgess, 326 N.C. at 218, 388 S.E.2d at 142. We
decline to create exceptions to a statute where none exist. As
such, Plaintiffs must seek relief from the General Assembly and not
the judiciary.
In sum, the records of the SBI's criminal investigation and
criminal intelligence information sought by Plaintiffs are not
public records. Moreover, Plaintiffs are neither criminal
defendants nor civil litigants seeking discovery of admissible
evidence to be used in a trial. “Instead, [they] sought access to
the S.B.I. records only due to [their] desire to know and publish
the contents.” News and Observer, 312 N.C. at 284, 322 S.E.2d at
139. As such, under North Carolina law, they are not entitled to
disclosure of the documents sought. To the extent the trial court
dismissed Plaintiffs' complaint seeking access to such documents,
dismissal was proper.
The trial court erred in granting the SBI's motion to dismiss
Plaintiffs' complaint, inasmuch as the complaint sought access to
“all public records” relating to the Mitchell County fire in the
possession of the SBI, a State governmental agency. Plaintiffs are
clearly entitled to information classified as public records under
the six exceptions listed in section 132-1.4(c) of the General
Statutes, arrest and search warrants, indictments, criminal
summons, and nontestimonial identification orders under section132-1.4(k), and any other public records not specifically exempted
from disclosure. Dismissal was otherwise proper. We therefore
reverse in part the order of the trial court and remand for a
determination of whether the SBI has in its possession any
information related to the Mitchell County fire defined as public
records under sections 132-1.4(c) and (k) of the General Statutes
to which Plaintiffs are entitled, or any other information not
specifically exempted from disclosure. We otherwise affirm the
order of the trial court.
Affirmed in part, reversed in part, and remanded.
Judges HUNTER and TYSON concur.
*** Converted from WordPerfect ***