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Authority of the City of Graham to Disclose Attorney-Client Communications

REPLY TO: Daniel D. Addison Labor Section 919/716-6680 May 30, 2001


Mr. Grady Joseph Wheeler, Jr., Esq. Attorney and Counselor at Law Suite Three, 207 North Main Street Graham, North Carolina 27253

Re: Advisory Opinion; Authority of the City of Graham to disclose attorney-client communications concerning employee personnel matters; N.C. Gen. Stat. § 132-1.1;

N.C. Gen. Stat. § 160A-168.

Dear Mr. Wheeler:

You have requested an opinion from the Attorney General’s Office on behalf of your client, the City of Graham. Specifically, you asked whether the provisions of N.C. Gen. Stat. § 160A-168 forbid the release of communications made to a municipality by an attorney representing the municipality on specific personnel matters related to an employee when a request for release is made pursuant to the Public Records Act, N.C. Gen. Stat. § 132-1, et seq.?

Gen. Stat. § 132-1.1 provides that public records do not include written communications from an attorney to a municipality represented by the attorney if those communications are within the scope of the attorney-client relationship and if the communications involve the prosecution, defense, settlement or litigation of judicial actions or administrative proceedings which affect the municipality. This section provides, however, that such communications become public records, and are thus required to be disclosed upon request, three years from the date such communications were received by the municipality.
Gen. Stat. § 160A-168(a) provides that, notwithstanding the provisions of the Public Records Act, personnel files of employees, former employees and employment applicants maintained by a city may not be disclosed except under specified limited circumstances. A "personnel file" is described as any information in any form gathered by the city with respect to that employee. The statute describes the following examples of information considered to be part of a personnel file: information relating to the employee’s application, selection or nonselection, performance, promotions, demotions, transfers, suspension and other disciplinary actions, evaluation forms, leave, salary, and termination. Disclosing these confidential materials is a misdemeanor.

In your letter, you said that you have provided written advice to the City Manager and City Council on personnel matters. Some of these matters involved litigation, and some did not. Some of these communications may be kept in the personnel file folders of individual employees, and some may not. You said that you have received a public record request from the editor of The Alamance News, who has asked to inspect all of your attorney-client communications with the City of Graham from 1993 through April 30, 1998 (three years ago). You asked whether N.C. Gen. Stat. § 160A-168(a) forbids the disclosure of some or all of your communications concerning personnel matters, or whether these communications must be disclosed three years after they were received, pursuant to N.C. Gen. Stat. § 132-1.1.

We conclude that written attorney-client communications to the City (including the City Manager and City Council) which are more than three years old, but which address matters made confidential by N.C. Gen. Stat. § 160A-168(a), are not public records. By its specific terms N.C. Gen. Stat. § 160A-168(a) supersedes the requirement in N.C. Gen. Stat. § 132-1.1 that privileged attorney-client communications must be disclosed three years after they are received. It provides: “Notwithstanding the provisions of G.S. 132-6 or any other general law or local act concerning access to public records, personnel files . . . are subject to inspection and may be disclosed only as provided in this section.” Nothing in N.C. Gen. Stat. § 160A-168 permits disclosing confidential personnel information based on its age.

The fact that personnel information made confidential by N.C. Gen. Stat. § 160A168(a) is contained in the files of the city’s attorney rather than the files of the city’s personnel officer is of no legal consequence. Under N.C. Gen. Stat. § 160A-168, the confidentiality of individual personnel documents is determined by their contents, not by their form or location. In this regard, however, it is important to observe that the information made confidential by N.C. Gen. Stat. § 160A-168 is limited to information about individual employees.

We hope that this fully answers your request. Should you have further questions regarding this issue, please do not hesitate to contact us.

Very truly yours,

Reginald L. Watkins Senior Deputy Attorney General

Daniel D. Addison Assistant Attorney General