April 18, 1996
Ann W. Spragens, General Counsel Department of Insurance 430 North Salisbury Street Raleigh, North Carolina 27603
RE: Advisory Opinion; Application of Public Records Law to Voice Mail Records; N.C.G.S. §
Dear Ms. Spragens:
We reply to your recent request for an opinion whether voice mail records, which are digitized and stored as binary encoded files in equipment located on your premises, are public records. Additionally, you inquire whether manual telephone answering machines, where the medium is analog magnetic tape, are public records. Based on the information that you provided, both types of voice mail records may be public records.
The relevant law regarding public records is found primarily in Chapter 132 of the North Carolina General Statutes. The Public Records Law provides the public with liberal access to public records, and absent a statutory exception, any record that falls within the definition of "public record" must be made available for public inspection. News and Observer Publishing Co.
v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992). N.C.G.S. § 132-1 defines "public records" and provides in part that the term:
shall mean all 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 or its subdivisions.
To answer your questions, three issues must be addressed. The first is whether a voice mail record falls within the definition of a public record. If so, the next inquiry is whether the record is made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina or its subdivisions. The final question is whether there is an applicable statutory exception to the general rule regarding public records.
The statutory definition of a public record is broad and comprehensive. It includes sound recordings and magnetic or other tapes, or other documentary material, regardless of physical form or characteristics. It would appear that all voice mail records fall within the first part of this definition. The same is true of voice recordings made on analog tape. This means that every voice mail record could, under some circumstances, be a public record.
The next inquiry is whether the voice mail records are "made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina or its subdivisions." This includes records kept in carrying out lawful duties. News and Observer Publishing Co. v. Wake County Hospital System, 55 N.C. App. 1, 284 S.E.2d 542 (1981) cert. denied, 305 N.C. 302, 291 S.E.2d 151, 459 U.S. 803, 103 S. Ct. 26, 74 L. Ed. 2d 42 (1982). This question can only be answered based on a review of each individual voice mail record. In considering each record, you must look at the substance of the voice mail record and determine if it was made pursuant to law, ordinance, or lawful duties while conducting State government business. If yes, then that particular voice mail record likely is a public record.
Finally, the substance of each individual voice mail record must be examined to see if it falls within one of the many statutory exceptions to the definition of public records. If there is no statutory exception, then that voice mail record likely is a public record.
You also inquire whether there are any federal preemption issues. The Omnibus Crime Control and Safe Streets Act, found at 18 U.S.C. 2510 et seq., generally prohibits the interception and disclosure of wire, oral, or electronic communications. In Payne v. Northwest Corporation, 911
F. Supp. 1299 (D. Mont. 1995), defendant Northwest Corporation alleged that plaintiff violated the federal wiretapping statute by recording messages left on his voice mail. The Federal District Court noted that persons leaving a message on voice mail consent to the recording of their message by the fact that they left a message. The Court held that an "interception" did not occur within the meaning of 18 U.S.C. 2510 et seq.. Id. at 1303. See, United States v. Turk, 526 F. 2d 654 (5th Cir. 1976), cert. denied, 429 U.S. 823, 97 S. Ct. 74, 50 L. Ed. 2d 84 (1976)(replaying of a previously recorded conversation excluded from the definition of "intercept"). It appears that the Omnibus Crime Control and Safe Streets Act does not apply to voice mail records.
In conclusion, voice mail records may be public records. Whether any particular voice mail record is a public record must be determined based on the individual record. This requires a careful analysis of the purpose and the substance of the record.
Reginald W. Watkins Senior Deputy Attorney General
Diane G. Miller
Assistant Attorney General