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Judicial Standards Commission; Confidentiality of Records

REPLY TO: Edwin M. Speas, Jr.

(919) 716-6400 FAX: (919) 716-0135

October 8, 2002

Deborah R. Carrington Executive Secretary State of North Carolina Judicial Standards Commission Post Office Box 1122 Raleigh, NC 27602

Re: Advisory opinion; Judicial Standards Commission; Confidentiality of Records; G.S. 132-1 et. seq.; G.S. 7A-377

Dear Ms. Carrington:

The Judicial Standards Commission has received a request from the News and Observer to examine and copy all documents relating to the development and adoption of the Commission’s rule authorizing private admonitions and all private admonitions issued pursuant to that rule. The Commission has requested our advice before it responds to the News and Observer’s request. We are pleased to share with the Commission our analysis of the pertinent statutes.

Our courts have established two general rules for construing the statutes providing for public access to records in the possession of executive and legislative branch officials: that the statutes will be construed to provide liberal access to those records and, correspondingly, that records will be deemed public records absent an express statutory provision to the contrary. See, e.g., News and Observer Publishing Co. v. Poole, 300 N.C. 465 (1992). These same rules of construction ordinarily also apply in determining access to records maintained by the judicial branch of government. See G.S. 7A-109(a) (Court records are public records). But see Virmani v. Presbyterian Health Services Corp., 350

N.C. 449, 463 (1999) (notwithstanding the public records act and G.S. 7A-109(a), a court “may shield portions of court proceedings and records from the public” where required for the “proper and fair administration of justice” or “where, for reasons of public policy, the openness ordinarily required for our government will be more harmful than beneficial.”)

To our knowledge, there is no statute exempting records pertaining to the development and adoption of the Commission’s rules from the scope of the Public Records Act, G.S. 132-1 et. seq. Therefore, nothing else appearing the Commissions’ records concerning the development and adoption of its rules are public records.

Deborah R. Carrington October 8, 2002 Page 2

The General Assembly, however, has specifically addressed the confidentiality of the Commission’s documents concerning individual justices or judges. G.S. 7A-377(a) provides in pertinent part:

Unless otherwise waived by the justice or judge involved, all papers filed with and proceedings before the Commission, including any preliminary investigation which the Commission may make, are confidential, except as herein provided. After the preliminary investigation is completed, and if the Commission concludes that formal proceedings should be instituted, the notice and complaint filed by the Commission along with the answer and all other pleadings are not confidential.

These provisions seem clear on their face. They reverse the ordinary rule that records are public records unless otherwise expressly provided and substitute the rule that materials in the Commission’s possession concerning a justice or judge are not public records unless otherwise expressly provided. The event that triggers a change in the status of records from confidential to public has been plainly stated by the General Assembly: it is a decision by the Commission to institute formal proceedings against a justice or judge by the filing of a complaint. As we understand the Commission’s rules and practices, a private admonition always precedes the filing of a complaint and in fact cannot be issued once the Commission files a complaint against a justice or judge. If our understanding of the Commission’s procedures is correct, private admonitions fall on the confidential side of the line drawn by the legislature in G.S. 7A-377.

In closing, we would observe that the effect of G.S. 7A-377 on the confidentiality of the Commission’s documents in most respects mirrors the protection of G.S. 126-22 for the “personnel files” of elected and appointed members of the legislative, judicial and executive branches, as made applicable to them by G.S. 126-5(c1)(1)(2) and (3).

Hopefully our advice will be helpful to the Commission as it responds to the News and Observer.

Very truly yours,

Edwin M. Speas, Jr.
Chief Deputy Attorney General