Authority to Inspect Records

Subject:

Requested By: James F. Kirk, Administrator,

N.C. Private Protective Services Board

Questions: Does the Private Protective Services Board have the authority to inspect the records of all licensees as part of an evaluation conducted pursuant to G.S. 74C-5(3)?

 

1.  
2. Does the definition of an armed security guard as set forth in G.S. 74C-13(a)(1) include a private investigator who carries a weapon?

    

3. If the answer to Question 2 is yes, does the Private Protective Services Board have the authority pursuant to G.S. 74C-9(e)(8) to charge private investigators a full fee for an armed security guard firearm registration permit?

    

Conclusions: Yes.

 

1.  
2. Yes.

    

3. Yes.

    

This request poses three separate questions, which will be answered seriatim.

INSPECTION OF RECORDS

G.S. 74C-2(c) authorizes the Private Protective Services Board to issue "a trainee permit in lieu of a private investigator license provided that the applicant works under the direct supervision of a licensee." G.S. 74C-5(3) authorizes the Private Protective Services Board to "[C]onduct investigations regarding alleged violations and to make evaluations as may be necessary to determine if licensees and trainees under this Chapter are complying with the provisions of this Chapter." The Private Protective Services Board is entitled, pursuant to the Board’s rule set forth in 12 NCAC 7D .0204(b), to request written documentation or verification of experience by the licensee or trainee permit applicant. As part of an evaluation of a private investigator trainee, a Private Protective Services Board investigator requested and was denied access to file records by a private investigator licensee who claimed that the records were part of a privileged and confidential relationship between the private investigator and his client. This office has been requested to provide an opinion regarding whether the Private Protective Services Board has the authority to examine the files of a licensee as part of an investigation or evaluation conducted pursuant to G.S. 74C-5(3).

The language of G.S. 74C-5(3) does not limit the type or source of information which may be sought by the Private Protective Services Board in conducting investigations or in making evaluations. The licensee’s refusal to provide access to the records was based on the assertion of a privileged relationship between the private investigator and his client which is not recognized either in common law or by statute in North Carolina. See, G.S. 8-53 – 8-57.1, which sets forth statutory relational privileges.

The Private Protective Services Board can take disciplinary action pursuant to G.S. 74C12(a)(23) against a licensee who has "[D]ivulged to any person, except as required by law, any information acquired by him except at the direction of the employer or client for whom the information was obtained." (Emphasis added). However, the Private Protective Services Board’s authority pursuant to G.S. 74C-5(1) "to require the submission of reports and information by licensees," together with its authority in G.S. 74C-5(3) to conduct investigations and make evaluations clearly falls within the exception set forth in G.S. 74C-12(a)(23) and requires the licensee to divulge information he acquired by providing the Board with access to his records.

ARMED SECURITY GUARD DEFINED

"Armed security guard" is defined by G.S. 74C-13(a)(1) as follows:

"Armed security guard" means an individual employed by a contract security company or a proprietary security organization whose principal duty is that of an armed security watchman; armed armored car service guard; armed alarm system company responder; private detective; or armed courier service guard who at any time wears, carries, or possesses a firearm in the performance of duty."

Under the provisions of G.S. 74C-3(a)(8), the terms "private detective" and "private investigator" are synonymous. Therefore, the plain meaning of G.S. 74C-13(a)(1) is that a private investigator who, at any time, carries a firearm in the performance of his duties is an armed security guard as that term is used in G.S. 74C-13.

PRIVATE INVESTIGATOR’S FEE

In the present fact situation, it has been contended that private investigators holding armed security guard registration permits have been overcharged because they have paid the armed security guard registration fee while they should have been charged a fee equal to the difference between the armed security guard registration and the unarmed security guard registration. This office has been requested to provide an opinion regarding whether the Private Protective Services Board has the authority to charge private investigators the full fee for an armed security guard firearm registration permit.

The Private Protective Services Board is authorized by G.S. 74C-9(e)(6) to charge "[A] new, renewal, replacement or reissuance fee for an unarmed registration identification card in an amount not to exceed thirty dollars ($ 30.00)." G.S. 74C-9(e)(8) authorizes the Board to charge "[A] new, renewal, replacement, or reissuance fee for an armed security guard firearm registration permit not to exceed thirty dollars ($ 30.00)." The fees established by the rules of the Private Protective Services Board for unarmed registration are contained within 12 NCAC 7D .0702, and armed security guard registration fees are set forth in 12 NCAC 7D .0802. Until January 1, 1990, these fees were $ 10.00 and $ 17.50 respectively. Temporary rules increased these respective fees to $ 20.00 and $ 30.00. As established in the answer to Question 2, a private investigator is an armed security guard when he carries a firearm in the performance of his duties. As such, he is required to make application for an armed security guard firearm registration permit and to pay the fee authorized by G.S. 74C-9(e)(8) and set forth in 12 NCAC 7D .0802 for new, renewal, replacement, or reissuance of an armed security guard firearm registration permit.

There is no provision requiring an off-set to the fee established pursuant to G.S. 74C-9(e)(6) for an unarmed registration identification card against the fee established pursuant to G.S. 74C9(e)(8) for an armed security guard firearm registration permit. These are separate license fees. Private investigators who fall within the definition of armed security guard in G.S. 74C-13(a)(1) must be charged the same fee for an armed security guard registration permit as any other individual statutorily defined as an armed security guard.

LACY H. THORNBURG Attorney General

Judith Robb Bullock Associate Attorney General