April 24, 1996
The Honorable Larry T. Justus North Carolina General Assembly State Legislative Building, Room 1013 Raleigh, North Carolina 27601-1096
Juanita H. Baker, Chairman Post-Release Supervision and Parole Commission Post Office Box 29540 Raleigh, North Carolina 27626-0540
Re: Advisory Opinion — Parole Commission Records; Application of the Public Records Law,
N.C. Gen. Stat. § 132-1 et seq.; Disclosure Authority.
Dear Representative Justus and Chairman Baker:
You each have asked questions concerning what restrictions, if any, are placed upon the disclosure of records created, received and used by the Post-Release Supervision and Parole Commission (hereinafter Parole Commission) in the performance of its statutory duties. Representative Justus has asked what Parole Commission records are required to be disclosed pursuant to the Public Records Law, N.C. Gen. Stat. § 132-1 et seq., and what records may be withheld on the grounds they are "confidential." Chairman Baker has asked who has the authority to disclose Parole Commission records. The questions are so closely related that they are best addressed in one comprehensive response. For reasons which follow, we conclude that all prison records, including parole records, are confidential and therefore are not required to be disclosed pursuant to the Public Records Law. We also conclude both the Chairman of the Parole Commission and the Secretary of the Department of Correction have discretionary authority to disclose parole records, notwithstanding their confidential status, when essential to maintaining the integrity of their respective agencies or to maintaining the level or quality of services provided by their agencies.
The Parole Commission is established by statute and given authority to grant, revoke, terminate and suspend paroles; to authorize work release privileges for inmates, and to assist the Governor in exercising his authority in granting reprieves, commutations and pardons. See N.C. Gen. Stat. § 143B-266(a) (1994). In performing its duties, the Parole Commission creates and receives correspondence, documents and records containing information related to inmates’ eligibility and suitability for parole and their post-release behavior. The Parole Commission also creates records documenting its official actions concerning inmates’ parole. "Case records and related materials [concerning a specific inmate] compiled for use by the Secretary of Correction and the Parole Commission [are] maintained in a single central file system . . . ." See N.C. Gen. Stat. § 148-74 (1994). The administration of the records section maintaining inmates’ central files is "under the control and direction of the Secretary of Correction." Id. Although there is but a single central file for each inmate, some of the correspondence, documents and records contained therein initially are created or received by the Parole Commission for its exclusive use. Other correspondence, documents and records contained in an inmate’s central file initially are created or received by the Department of Correction but used by both the Department and the Parole Commission. By law, all information contained in an inmate’s central file may be "made available to law-enforcement agencies, courts, correctional agencies, or other officials requiring criminal identification, crime statistics, and other information respecting crimes and criminals."
- N.C.
- Gen. Stat. § 148-76 (1994). An analysis of which Parole Commission records are required to be disclosed begins by reference to the Public Records Law, N.C. Gen. Stat. § 132-1 et seq. (1995), and other laws specifically addressing disclosure of the particular record being sought. By enacting the Public Records Law, "the legislature intended to provide that, as a general rule, the public would have liberal access to public records." News and Observer Publishing Co. v. State ex rel. Starling, 312
- N.C.
- 276, 281, 322 S.E.2d 133, 137 (1984). Under the law, "public records" are defined as . . . all documents, papers, letters, maps, books, photographs, films, sound recording, 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.
- N.C.
- Gen. Stat. § 132-1(a) (1995). As used in the Public Records Law, the phrase "made or received pursuant to law or ordinance in connection with the transaction of public business" includes, in addition to those records required to be kept by law, "records that are kept in carrying out [the agency’s] lawful duties." News and Observer Publishing Company v. Wake County Hospital System, 55 N.C. App. 1, 13, 284 S.E.2d 542, 549 (1981), cert. denied, 305 N.C. 302, 291 S.E.2d 151, cert. denied, 459 U.S. 803, 103 S.Ct. 26, 74 L.Ed.2d 42 (1982) (emphasis added). An "agency of North Carolina government" includes "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 . . . ." N.C. Gen. Stat. § 132-1(a).
The Parole Commission is an agency of North Carolina government as defined by the Public Records Law. Without more, all correspondence, documents and records created or received by the Parole Commission in connection with the transaction of its public business would be considered public records and their custodian required to permit them "to be inspected and examined . . . by any person and . . . [required to] furnish copies thereof . . . ." N.C. Gen. Stat. § 132-6(a). However, the Public Records Law recognizes that the State’s policy of allowing the people access to public records and information does not apply when exemptions from disclosure are "otherwise specifically provided by law." N.C. Gen. Stat. § 132-1(b). The Public Records Law itself exempts from disclosure information which is "confidential." N.C. Gen. Stat. § 1321.2(4).
In Goble v. Bounds, 13 N.C. App. 579, 186 S.E.2d 638, aff’d, 281 N.C. 307, 188 S.E.2d 347 (1972), the North Carolina Court of Appeals interpreted N.C. Gen. Stat. §§ 148-74 and 148-76 as establishing that all prison records are confidential and subject to inspection by only those persons specifically named in the statutes. In affirming the Court of Appeals’ decision, the North Carolina Supreme Court also recognized the common law rule that "prison records of inmates are confidential and are not subject to inspection by the public nor the inmate concerned." Goble
v. Bounds, 281 N.C. 307, 311, 188 S.E.2d 347, 350 (1972). Subsequent decisions of the State’s appellate courts have reached the same conclusion. See Baugh v. Woodard, 56 N.C. App. 180, 287 S.E.2d 412 (1982) (prison records concerning an inmate’s mental health treatment are confidential and not subject to inspection by the inmate concerned). Federal decisions are in accord. See Paine v. Baker, 595 F.2d 197 (4th Cir. 1979) (holding it was error for the district court to allow an inmate to inspect his prison file) cert. denied 444 U.S. 925 (1979); Franklin v. Shields, 569 F.2d 784 (4th Cir. 1978) (en banc) (holding prisoners have no constitutional right of access to their prison records) cert. denied, 435 U.S. 1003, 98 S.Ct. 1659, 56 L.Ed.2d 92 (1978).
Parole Commission records are properly considered prison records because they contain information about inmates in the custody of the Department of Correction or inmates conditionally released to the legal custody of the Parole Commission but under the direct supervision and control of the Department of Correction’s Division of Adult Probation and Parole. Thus, the confidentiality provided to prison records has been extended by both the state and federal courts to parole records. See State v. Russell, 92 N.C. App. 639, 376 S.E.2d 458 (1989) (concluding that parole records are made confidential pursuant to N.C. Gen. Stat. § 15207); Ross v. Woodard, 683 F.2d 846 (4th Cir. 1982) (holding a potential parolee has no constitutional right of access to his parole file). Therefore, all correspondence, documents and records created or received by the Parole Commission in the performance of its duties, including those initially created or received by the Department of Correction but used by the parole Commission, are confidential and do not have to be disclosed pursuant to the Public Records Law.
The question of who has the authority to disclose records created or received by the Parole Commission is answered more easily. Notwithstanding the confidential nature of parole records, both the Chairman of the Parole Commission and the Secretary of the Department of Correction have discretionary authority to disclose them. The Chairman, as the public official in charge of the Parole Commission, has the inherent authority to disclose the Commission’s records provided disclosure is essential to maintaining the integrity of the Commission or to maintaining the level or quality of services provided by that governmental agency. The Secretary has statutory authority to disclose Parole Commission records pursuant to N.C. Gen. Stat. § 15-207. See State
v. Russell, 92 N.C. App. 639, 376 S.E.2d 458 (1989) Additionally, the Secretary may disclose Parole Commission records pursuant to his general supervisory authority over the Commission provided disclosure of the records or information is essential to maintaining the integrity of the Department of Correction or to maintaining the level or quality of services provided by the Department.
We trust this Advisory Opinion has been responsive to your inquiries.
William N. Farrell, Jr.
Senior Deputy Attorney General
W. Dale Talbert
Special Deputy Attorney General