September 25, 1995
The Honorable Julia C. Howard Chair, House Ethics Committee North Carolina General Assembly State Legislative Building Raleigh, N.C. 27601
RE: Advisory Opinion, Open Meetings, Public Records, N.C.G.S. §§ 132-1, et seq., 143-318.9.
Dear Ms. Howard:
We have received your request dated September 22, 1995, for an opinion on two follow-up questions to our previous opinion dated September 20, 1995. Set forth below are our opinions to your additional questions as the Ethics Committee considers procedures for investigating and considering sexual harassment charges against a member of the House.
QUESTION:
May the Committee proceed under N.C.G.S. § 143-318.11(a)(6) in closed session for the limited purpose of taking the testimony of a former page who is a minor and who is unwilling to testify except in closed session but proceed in open session for the remainder of its investigation and deliberation?
ANSWER:
Yes. Assuming that the Committee can go into closed session under N.C.G.S. § 143-318.11(a)(6) at all, it can, at its discretion, proceed in closed session for a portion of its deliberations and proceed in open session for other portions. If it chooses to go into closed session for the purpose of taking the testimony of a former page who is a minor and who is unwilling to testify except in closed session, we believe the transcript of the testimony is part of the minutes of the closed session. As such, the transcript is a public record and may be held from public inspection only for so long as "public inspection would frustrate the purpose of [the] closed session." N.C.G.S. § 143-318.10(e). As stated in our initial opinion, we believe this would make the full transcript available for public inspection no later than at the conclusion of the Committee’s proceedings.
QUESTION:
May the Committee consider and discuss investigatory reports in closed session under N.C.G.S. § 143-318.11(a)(6)?
ANSWER:
Yes. Again, assuming that the Committee can go into closed session under N.C.G.S. § 143318.11(a)(6), it can do so for the purpose of considering and discussing investigatory reports. Such reports are public record and must be made available for public inspection. The law, however, does not make clear when public inspection should occur. If the Committee chose to make the reports part of the minutes of the closed session, the reports arguably could be held for
public inspection under N.C.G.S. § 143-318.10(e) until the conclusion of the Committee’s
proceedings. This result depends on whether the reports can lawfully be made part of the minutes
of the closed session. Unlike the transcript of testimony taken in the closed session, however,
investigatory reports contain information such as witness interviews, etc. obtained outside of the
closed session. Arguably, this could distinguish investigatory reports received and discussed in a
closed session from minutes of the proceedings of the closed session. In short, the Committee has
a responsible basis for delaying public inspection of investigatory records until the conclusion of
its proceedings. However, we are unable to predict with confidence how a court would rule in a
lawsuit seeking public inspection of the reports prior to the conclusion of the Committee’s
proceedings.
We trust this is responsive to your questions. If we can be a further assistance, please let us
know.
Andrew A. Vanore, Jr.
Chief Deputy Attorney General
John R. McArthur
Chief Counsel