August 29, 1994
Ms. Deborah Crane, Director Office of Public Affairs Department of Environment, Health and Natural Resources
P.O. Box 27687 Raleigh, North Carolina 27611-7687
RE: Public Record status of draft reports and investigative files; N.C. Gen. Stat. §132-1 and §132-6.
Dear Ms. Crane:
This is in response to your request for an opinion about whether certain documents of the Department of Environment, Health and Natural Resources (DEHNR) are public records. Specifically, you have asked whether the following documents are public records subject to disclosure requirements: (1) Draft reports; and (2) Staff investigative files prepared in advance of civil litigation.
Public records include "all . . . documents . . . regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by an agency of North Carolina government or its subdivisions." N.C. Gen. Stat. §132-1. Unless an exemption applies to such records, government agencies must permit them to be inspected and/or copied by anyone upon request. N.C. Gen. Stat. §132-6.
DRAFT REPORTS
DEHNR produces investigative and other reports that are initially scripted by employees but are revised or expanded by other employees before being signed by a supervisor as a final report. You have asked whether such reports must be disclosed as public records before they are complete and final.
The public records law does not specifically address the question of whether preliminary versions of documents are considered public records. The law also does not specify the point at which a document being written becomes a record that is subject to public disclosure.
In News & Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992), the North Carolina Supreme Court required the disclosure to a newspaper of two proposed drafts of a final report of a State government commission. These report drafts, which contained proposed findings of an investigation, were written by commission members and had been presented for review to the government official who created the commission.
The Supreme Court said that it would not exempt such draft reports from disclosure simply because they were still undergoing a deliberative process. The Court said whether such an exception should be made is a question for the legislature. Poole, at 484, 412 S.E.2d at 16.
Since the Court in Poole made a rather broad and unspecific pronouncement about draft reports, we cannot assure you that any initial drafts of reports, no matter how incomplete, are exempt from required public disclosure.
However, the reports that were required to be disclosed in the Poole case were fully written, and the reports were at the stage where they were undergoing review in anticipation of their release. It may be possible to argue in future cases that unfinished report drafts, or other drafts that are not as close to completion as the reports in Poole, might not be at a stage where they are records that must be disclosed.
In a case from Florida, Shiven v. Byron, Harless, Schafffer, Reid & Assoc., 379 So.2d 633 (Fla. 1980), the Florida Supreme Court found that the field notes of an investigator were not subject to disclosure as public records. The Court noted that a dictionary defined "records" as materials that have been prepared with the intent of perpetuating or formalizing knowledge. Basing its decision on this definition, the Court ruled that the notes were not a record because they were not the final evidence of the knowledge to be recorded.
Similar analysis might be applied in North Carolina cases to argue that initial or incomplete drafts of reports might not be at the stage where they are "records" subject to disclosure requirements.
Whether an incomplete report is yet a record might depend upon:
(1) Whether the main writer of the report has even finished writing it yet; (2) If more than one person is writing the report, whether later authors will make substantive additions or changes, or whether they will only review what is basically a finished report before it is released; (3) If the person who will sign the report is not the one writing it, whether the signer has had a chance to review the report yet.
Obviously, the closer a report is to completion, the more likely it would be considered to be a public record.
INVESTIGATION FILES
The public records law contains no disclosure exemption for documents in government agency staff investigation files prepared as part of enforcement efforts, but in advance of civil litigation.
The statutes authorizing investigations by DEHNR staff contain only one provision specifically permitting the department to withhold investigative records from the public. The North Carolina Radiation Protection Act authorizes the department to conduct investigations relating to the sources, control and effects of radiation. N.C. Gen. Stat. §104E-9(2). The department may refuse to make public dissemination of information relating to a source of radiation in the State if disclosure would contravene public policy or would be against the health, safety and welfare of the public. N.C. Gen. Stat. §104E-9(4).
The documentary information obtained or compiled by DEHNR staff in the bulk of their other civil environmental law enforcement investigations is specified by statute as public records. Records, reports or information obtained by the Environmental Management Commission in investigations under Article 21 (Water and Air Resources), Article 21A (Oil Pollution and Hazardous Substances Control), and Article 21B (Air Pollution Control) of Chapter 143 of the General Statutes "shall be made available to the public." N.C. Gen. Stat. §143-215.3(a)(2)(ii). The only exception is that the commission must keep certain trade secret information confidential. Id.
Based on the above it is our opinion that, except for the disclosure exemptions noted, investigative files in civil enforcement proceedings are public records subject to the disclosure requirements of the public records law.
However, there remains a question as to when DEHNR might have to disclose such materials. Although the statute states that such investigatory materials are public, the statute does not state when DEHNR must make the materials public. There is nothing in either the public records statute or DEHNR’s statutes that specifically permits DEHNR to withhold disclosure of investigatory materials until investigations are complete. A literal interpretation of the public record law would require that investigatory materials be disclosed, upon demand, at any time after they are received, regardless of whether the investigation is complete. Thus, we cannot advise you that withholding requested investigatory records until completion of investigations would be protected from legal challenge.
However, it may be possible to argue as a matter of public policy that investigatory materials need not be released until the investigation is completed.
In City of Bartow v. Public Employees Relations Commission, 341 So.2d 1000 (FLA. App. 1976), the Florida Court of Appeals found that disclosure of investigatory materials may be delayed until completion of the investigation. The court based it’s decision on language from Florida’s public records law stating that the public should have access to public records "at reasonable times [and] under reasonable conditions." The court felt that requiring the release of investigatory materials prior to the completion of investigations might compromise investigations. The court held that the statutory language requiring access to public records at "reasonable times" permitted postponing the release of investigatory materials until the investigation was completed.
North Carolina’s public records law, like Florida’s law, says that public records must be disclosed at reasonable times. N.C. Gen. Stat. §132-6. It can be argued in future cases that release of investigatory materials is only reasonable after investigations are complete. We caution that this argument has neither been raised nor addressed by the North Carolina courts.
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