Public Records; North Carolina Uniform Traffic Ticket and Complaint; Right of Public Inspection

Subject:

Public Records; North Carolina Uniform Traffic Ticket and Complaint; Right of Public Inspection

Requested By:

Barbara Smith Assistant Secretary Department of Crime Control and Public Safety

Questions:

1. Is the Departmental Copy of the North Carolina Uniform Traffic Ticket and Complaint, which is submitted by a Highway Patrolman to the District First Sergeant who transmits it to the Traffic Record Station of the Division of Motor Vehicles, a public record and subject to inspection during the time it is maintained at the Patrol District Headquarters?

2. Is the Enforcement Division Copy of the North Carolina Uniform Traffic Ticket and Complaint, which is maintained by the officer issuing the complaint and includes his notes and other evidence, a public record and subject to inspection prior to trial of the offense charged in the complaint?

3. Is the Enforcement Division Copy of the North Carolina Uniform Traffic Ticket and Complaint a public record and subject to inspection in the Patrol District Headquarters after the trial of the offense charged in the complaint?

Conclusions:

1. No.

2. No.

3. No.

The General Assembly has defined the term public records to mean:

""Public record" or "public records’ shall mean all documents, papers, letters, maps, books, photographs, films, sound recordings, . . . or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina Government or its subdivisions."

G.S.

132-1.

A custodian of a public record is the "public official in charge of an office having public records shall permit them to be inspected and examined at reasonable times and under his supervision by any person, and he shall furnish certified copies thereof on payment of fees as prescribed by law."

G.S.

132-6.

The North Carolina Uniform Traffic Ticket and Complaint is authorized pursuant to G.S. 7A-148(b) and G.S. 15A-302. There is no statutory requirement for disposition of copies of the uniform complaint except that a copy of the complaint must be delivered to the person cited. G.S. 15A-302(d).

The initial question is whether the District First Sergeant is required to allow inspection of the Departmental Copy of the North Carolina Uniform Traffic Ticket and Complaint during the time that he has the copy and before he transmits it to the Traffic Records Section of the Division of Motor Vehicles. This copy of the complaint contains the same information as the original and the copy filed in the clerk’s office. The First Sergeant is just a conduit for this copy of the complaint. The General Assembly could not have intended that each person who receives public record and passes it on would be required to allow that public record to be inspected during the time, however short, that the individual has possession of the record. Only a person "having custody of public records" is required to permit inspection. G.S. 132-6. A custodian is the "public official in charge of an office having public records." G.S. 132-2. It does not seem that the General Assembly intended that the District First Sergeant be a custodian within the meaning of the statute. He does not file or maintain a log of the records temporarily in his possession other than the report he prepares.

In addition, a custodian must "furnish certified copies" of the public records upon payments of fees prescribed by law. There is no authority, that we can ascertain, for a Sergeant in the Highway Patrol to certify copies of complaints. The clerk of court may certify copies of complaints on file with him. G.S. 7A-103(6). The Commissioner of Motor Vehicles is also authorized to certify copies of records on file in his office. G.S. 20-42(b). In the situation described, the District First Sergeant is not a custodian of public records and therefore is not required to permit them to be inspected and examined and is not required to furnish certified copies of them. This information on record can be obtained from the clerk of court or the Commission of Motor Vehicles. The Highway Patrol does not have the personnel necessary to allow such inspection in all 49 districts.

The second question presented is whether the Enforcement Division Copy of the North Carolina Uniform Traffic Ticket and Complaint which is maintained by the arresting officer and contains his notes and other evidence is a public record and subject to inspection and examination. It has been consistently held that there is no common law right to discovery in a criminal case. State v. Goldburg, 261 NC 181, 134 SE 2d 334, cert. den. 377 US 978 (1964). Even though a law enforcement officer makes his notes and gathers evidence pursuant to the authority granted him by law, i.e., G.S. 20-188, if such records and notes are not required to be disclosed to a criminal defendant, we fail to see how the same notes are required to be disclosed to the general public. A criminal defendant can only obtain those items which are allowed by the criminal discovery statutes. See State v. Davis, 282 NC 107, 191 SE 2d 664 (1972); State v. Blue, 20 NC App. 386, 389, 201 SE 2d 548 (1974) (notes of officer not subject to discovery); State v. Jones, 23 NC App. 686, 688, 204 NC 508 (1974), cert. den. 286 NC 418 (reports of officers or work product of police not subject to disclosure in this case).

Despite the broad language of the Public Records Act, supra, the courts have held certain records as confidential. G.S. 148-74 and 148-76 require that records be maintained on prisoners. They are not specifically declared to be confidential. However, the Supreme Court held that a prisoner, who is an interested party, may not see such files. Goble v. Bound, 13 NC App. 579, 581, aff.’d 281 NC 307, 188 SE 2d 347 (1972).

The notes, opinions, and preceptions of the law enforcement officer may be contained on his copy of the Uniform Traffic Ticket and Complaint. Based upon the above case law, the opinion of this Office issued on June 3, 1975, to the Honorable J. Herbert Haynes, Sheriff of McDowell County, 44 NCAG 340 (1975), is still valid. This opinion concluded that investigative reports and memoranda concerning investigations of crimes are not public records within this sense of Chapter 132 and are therefore not subject to public inspection. This opinion and the reasoning supporting it would apply to the Enforcement Division Copy of the North Carolina Uniform Traffic Ticket and Complaint.

Florida has a similar statute to North Carolina. Chapter 119.01 of the Florida statute provides that "(it) is the policy of this state that all state, county and municipal records shall at all times be open for a personal inspection by any person." A public record is defined to mean ". . . all documents, papers, letters, maps, books, photographs, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of official business by any agency." Chapter 119.011(1), Florida Statutes. This language is almost identical to the North Carolina statute. The Florida Courts have construed this statute to exempt police records.

"First, it is clear that the police reports are not public records within the meaning of Section 119.02, Florida Statutes (1975) and thus need not be held open at all times for personal inspection by any person. Police records are ordinarily confidential." City of Tampa v. Harold, 352 So. 2d 944, 946 (Fla. App., 1977).

The Florida Supreme Court held that police records could be produced and used in evidence in a trial only in a rather restrictive sense and outline that criteria governing production and use.

"It depends, as we have said, upon 1) being critical, 2) upon a material and vital point, 3) reasonably exculpatory of defendant within sound judicial discretion, and 4) after "in camera" review and deletion of improper matter." State v. Johnson, 284 So. 2d 198 (Fla. 1973)

Florida has recognized the need, as our previous opinion did, for police records to be held confidential. The items in question here are just as much police record as any other form. They must therefore be deemed confidential and not subject to inspection absent an order from a court of competent jurisdiction.

After the trial of the matter charged by the Uniform Traffic Ticket and Complaint, the notes and evidence gathered by the officer would still prevent this item from being a public record. The officer would be less likely to put down the necessary information to assure proper prosecution of the criminal matter if he knew that such notes and impressions would be subject to inspection and publication. Revealing such records would have a chilling effect upon a law enforcement officer and no appreciable public benefit. The impressions and notes which are introduced at the trial as evidence become part of the record of the trial and may be inspected in the courthouse. All other matters which were not introduced at the trial should not be required to be disclosed. The same rationale for not disclosing the notes of the law enforcement officer before trial would seem also to apply after trial.

Rufus L. Edmisten Attorney General

Isaac T. Avery, III Assistant Attorney General