North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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April 3, 2006

Rodney S. Maddox
Chief Deputy Secretary of State
North Carolina Department of the Secretary of State
P.O. Box 29622
Raleigh, N.C. 27626-0622

Re: Advisory Opinion; Public Records Law - Criminal Records; N.C. Gen. Stat. § 132-1.4 (2005)

Dear Mr. Maddox:

This letter is in response to your request for an opinion whether records obtained and produced by the North Carolina Department of the Secretary of State (hereinafter “the Department”) solely for the purpose of making a report of an apparent criminal violation under N.C. Gen. Stat. § 120-47.10, fall within the exception to the Public Records Act found in N.C. Gen. Stat. § 132-1.4. In our opinion, as a general rule, the records in your possession are not records of criminal investigations or intelligence and are a public record. In reaching this determination, we considered relevant statutes from the Public Records Act, as well as current and recent amendments to the lobbying laws.

Public records, as defined by N.C. Gen. Stat. § 132-1, mean "[a]ll 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."

The Public Records Act clearly 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. v. State, 124 N.C. App. 175, 176, 474 S.E.2d 450, 451-52 (1996), disc. review denied, 345 N.C. 645, 483 S.E.2d 717 (1997); N.C. Gen. Stat. § 132-1 et seq. You inquire if the records in question are exempt from the Public Records Act under N.C. Gen. Stat. § 132-1.4. N.C. Gen. Stat. §132-1.4(a) provides in part 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.”

The threshold question therefore is to determine if the Department is a public law enforcement agency when it is reporting apparent violations of the lobbying laws under N.C. Gen. Stat. § 120-47.10. N.C. Gen. Stat. § 132-1.4(b) provides that a public law enforcement agency means “any State or local agency, force, department, or unit responsible for investigating, preventing, or solving violations of the law.” After reviewing the current statutes that regulate lobbying and recent amendments to those statutes, we conclude that the Department is not a public law enforcement agency when it is making a referral of an apparent criminal violation under the current version of

N.C. Gen. Stat. § 120-47.10.

N.C. Gen. Stat. § 120-47.10 provides:

The Secretary of State shall report apparent violations of this Article to the Attorney General. The Attorney General shall, upon complaint made to him of violations of this Article, make an appropriate investigation thereof, and he shall forward a copy of the investigation to the district attorney of the prosecutorial district as defined in G.S. 7A-60 of which Wake County is a part, who shall prosecute any person who violates any provisions of this Article.

It is apparent on the face of N.C. Gen. Stat. § 120-47.10 that the Attorney General is responsible for investigating apparent violations of the lobbying laws and that the district attorney is responsible for prosecuting any person who violates the lobbying laws. Currently, the function of the Department is limited to making a report of apparent violations of the lobbying laws to the Attorney General. Therefore, the Department is not a public law enforcement agency when it is performing that specific function.

Recently, the legislature amended the lobbying laws. Effective January 1, 2007, the Department’s powers and duties will be expanded to include the authority to issue subpoenas and subpoena duces tecum as necessary to conduct investigations of violations of legislative branch lobbying and executive branch lobbying. N.C. Gen. Stat. §§ 120-47.7B and 147-54.39. Those enlarged powers are consistent with conducting investigations as contemplated under N.C. Gen. Stat. § 132-1.4. Additionally, the legislature has affirmatively provided that in addition to these new powers and duties, all records accumulated in conjunction with the Department’s investigation of lobbying complaints shall be considered records of criminal investigations under N.C. Gen. Stat. § 132-1.4. N.C. Gen. Stat. §§ 120-47.7B and 147-54.39.

“The cardinal principle of statutory construction is to discern the intent of the legislature. In discerning the intent of the General Assembly, statutes in pari materia should be construed together and harmonized whenever possible.” State v. Jones, 359 N.C. 832, 835-46, 616 S.E.2d 496, 498 (2005) (citations omitted). Furthermore, our courts have recognized that when multiple statutes address a single subject, their “task is to give effect, if possible, to all sections of each statute and to harmonize them into one law on the subject.” Brown v. Flowe, 349 N.C. 520, 523-24, 507 S.E.2d 894, 896 (1998) (citations omitted).

Applying these well-established principles of statutory construction to the facts presented by your inquiry, we conclude that because the legislature created new statutory provisions that, effective January 1, 2007, specifically provide that the Department’s investigation records of legislative branch lobbying and executive branch lobbying shall be considered records of criminal investigations, records obtained by the Department to report apparent violations under the current version of N.C. Gen. Stat. § 120-47.10 are public records.

We hope that this letter is responsive to your inquiry. Please feel free to contact us if you have any further questions regarding this issue.

Sincerely yours,

Grayson Kelley
Chief Deputy Attorney General

Reginald L. Watkins
Senior Deputy Attorney General

Diane G. Miller
Assistant Attorney General