August 12, 1994
Mr. David C. Worth, Jr., Counsel North Carolina Savings Institutions Division 1110 Navaho Drive – Suite 301 Raleigh, North Carolina 27609
RE: Advisory Opinion; Public Records Status of Withdrawn Applications for Conversion from Mutual to Stock Organization; N.C. Gen. Stat. §54C-60; N.C. Gen. Stat. §§132-1, 132-3 and 132-6; N.C. Gen. Stat. §121-5.
Dear Mr. Worth:
This is in response to your request for an opinion on whether a savings institution’s withdrawn application for conversion from a mutual to a stock organization is subject to disclosure as a public record. Specifically, you asked if the Savings Institutions Division (SID) retains a withdrawn application, is the retained application subject to disclosure as a public record. You also asked whether the public records law requires SID to retain a withdrawn application, and whether SID may return the withdrawn application to the institution.
N.C. Gen. Stat. §54C-60(c) states that the information contained in an application for conversion is public information, with the exception of the financial statement of the incorporators and any further information deemed by the Administrator of SID to be confidential. N.C. Gen. Stat. §1321 defines public records as documents received pursuant to law in connection with the transaction of public business by any agency of North Carolina government. These statutes indicate that the public information portion of conversion applications is a public record, subject to the disclosure requirements of N.C. Gen. Stat. §132-6.
Nothing in either the savings bank statute or the public records statute indicates that the public nature of a conversion application is dependent upon whether SID has acted upon the application, or whether the applicant has asked SID to discontinue its consideration of the application. The clear intent of Section 132-1 is that a document becomes a public record when "received" by the state agency. We conclude, therefore, that once a conversion application is received by SID, the public information portion of the application is subject to the disclosure requirements of Chapter 132, regardless of whether SID has taken action on the application or whether the applicant has asked SID to discontinue its consideration of the application.
However, if the applicant withdraws the application and SID either destroys the application materials or returns them to the applicant without retaining a copy, SID can no longer be considered to have custody of a record of the application at all. In such a situation there would no longer be any records for SID to disclose, and SID would have no responsibility to permit inspection pursuant to G.S. 132-6.
The remaining question is whether SID may destroy or return a conversion application when an applicant withdraws it. N.C. Gen. Stat. §132-3 states that no public official may destroy or dispose of any public record, except in accordance with G.S. 121-5, without the consent of the Department of Cultural Resources. N.C. Gen. Stat. §121-5(b) indicates that public records may be destroyed or disposed of when the records’ custodian and the Department of Cultural Resources certify that the records have no further use or value for official, administrative, research, or reference purposes. State agencies may routinely dispose of categories of records in their offices without individual review by the Department of Cultural Resources if they have established a retention and disposition schedule for those categories of documents with the Department’s Records Services Branch, Division of Archives and History.
Thus, SID may destroy or return withdrawn conversion applications either upon case-by-case certifications by SID and the Department of Cultural Resources, or pursuant to a retention and disposition schedule established with the Records Services Branch.
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