May 22, 1995
Mr. Keith D. Burns Faison & Fletcher
P.O. Box 51729 Durham, North Carolina 27717-1729
Re: Advisory Opinion; Confidentiality of letters from internal affairs department of municipal police department to private individual concerning investigation of a complaint against a police officer; G.S. § 132-6 and § 160A-168.
Dear Mr. Burns:
This is in response to your request, on behalf of a North Carolina municipality you represent, for an advisory opinion from the Attorney General’s Office. You requested our opinion on the public record status of correspondence from the municipal police department’s Internal Affairs Division ("IAD") to a citizen who has registered a complaint about a police officer.
You indicated that when a citizen registers a complaint about a police officer, IAD writes a letter to the citizen informing him that the complaint has been received and will be investigated. After the investigation is conducted, IAD writes another letter to the complainant summarizing the outcome of the investigation. This final letter informs the complainant if the charges were sustained or not sustained, whether the officer was exonerated, and whether the charges were unfounded. The final letter does not indicate whether any disciplinary action was taken against the officer.
You asked whether these initial and final letters to complainants, copies of which are retained in IAD’s files, are confidential personnel file documents pursuant to G.S. § 160A-168, or whether they are subject to public disclosure pursuant to the Public Records Law, G.S. § 132-6.
Personnel files of municipal employees are not subject to general public inspection, notwithstanding the Public Records Law requirement that the public be permitted to inspect government records. G.S. § 160A-168(a). An employee’s personnel file consists of any information in any form gathered by the city with respect to that employee. Personnel files include, but are not limited to, information relating to an employee’s application, selection or nonselection, performance, promotions, demotions, transfers, suspension and other disciplinary actions, evaluation forms, leave, salary, and termination of employment. G.S. § 160A-168(a).
You indicated that the purpose of an IAD investigation is to evaluate an officer’s performance with respect to a complaint and to determine whether disciplinary action against the officer is warranted. The letters to IAD complainants contain information directly relating an employee’s performance, and indirectly relating to possible disciplinary action. Thus, these letters fall within the definition of personnel files in G.S. § 160A-168, and the department may not disclose them to the general public.
A question arises as to whether IAD may release this information to the complainant, since the information is not subject to public disclosure. We conclude that since these letters contain confidential personnel information, the department would need to avail itself of one of the exceptions in G.S. 160A-168(c) in order to release this information to the complainant. This might be accomplished by having the employee who is the subject of the complaint and investigation sign a release authorizing the disclosure of the information to the complainant. G.S. 160A-168(c)(6).
Alternatively, this information might be released to the complainant if the city manager and council invoke the provisions of G.S. 160A-168(c)(7). In accordance with that subsection, the city manager, with concurrence of the council, must determine in writing that release of the information to the complainant is essential to maintaining public confidence in the administration of city services or to maintaining the level and quality of city services. This written determination must be retained in the office of the city manager or city clerk, it must be made available for public inspection, and it must become part of the employee’s personnel file. If this procedure is invoked and followed, the council may then inform the complainant (or any other person deemed essential to receive the information) about personnel actions taken against an employee and the reasons for those actions.
It is our opinion that if the city invokes and follows this latter procedure, the two IAD letters described above may be sent to the complainant while still maintaining the confidentiality of copies of those letters that are retained in IAD’s files. Only the city manager’s written determination concerning the need for the release becomes a public record. The personnel information that is released to the complainant in the letters remains confidential.
You asked whether, in light of News and Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992), the police department waives the confidentiality of IAD complaint response letters by sending the originals to the complainant.
The Poole case does not stand for the proposition that government agencies waive the confidentiality of their own files if they disclose confidential documents to others. In Poole, one government agency turned confidential records over to a second government agency. The plaintiffs successfully sued for access to those records in the hands of the second agency. The Court ruled that there was no statutory provision which permitted the second agency to share the first agency’s claim to confidentiality. However, the court’s decision did not affect the confidentiality of the records in the hands of the first agency.
In your scenario, the police department does not waive the confidentiality of its own personnel records merely because it has disclosed information from those files to a private individual in compliance with the provisions of G.S. 160A-168(c). First of all, by sending a letter to the complainant the police department does not disclose the information to another government agency. Second, the confidentiality of the copies of the letters in the hands of the police department is not affected by the fact that someone else has the original.
Of course, a private individual who receives letters from IAD concerning his complaint is free to disclose or not to disclose those letters publicly. Neither G.S. § 160A-168 nor the Public Records Law applies to private individuals. However, the police department’s copies of those letters are still personnel records in the hands of the police department, and the department is prohibited from publicly disclosing its copies of those letters.
We hope that this fully answers your request. Should you have further questions regarding this issue, please do not hesitate to contact us.
Wanda G. Bryant Senior Deputy Attorney General
Daniel D. Addison
Associate Attorney General