With glowing references, top-notch productivity, and all-around likability, Shifty Sam seemed like Aboveboard Town’s most valuable employee (name aside). When Shifty Sam is arrested, his coworkers are shocked and dismayed. The Aboveboard Town Council wants to learn more about Sam’s alleged criminal conduct to evaluate his continued employment with the town, so it requests copies of the police report and witness statements. Can the police department release the documents? If so, are the report and statements subject to inspection as part of Sam’s personnel file? Let’s explore.

The Public Records Law

Under G.S. 132-1, all records of any kind made or received by a public agency relating to the transaction of public business are public records. However, the Public Records Act creates multiple exceptions to this broad grant of access, including one for records of criminal investigations. Records of criminal investigations include all records and information that law enforcement agencies collect about people to prevent or solve violations of the law. G.S. 132-1.4(b)(1). Under Section 132-1.4(a), records of criminal investigations are not public records and may be released by court order.

The statute’s use of the phrase “not public records” indicates that the public does not have a right to access these records, but a local government can still legally disclose them. In other words, nothing in Section 132-1.4 makes records of criminal investigations confidential. While subsection (a) provides that agencies may release copies pursuant to a court order, the statute does not require a court order for release. Taken together, records of criminal investigation are neither confidential nor public record. Section 132-1.4 eliminates the public’s right of access to records of criminal investigations but still permits local governments to release copies or allow inspection of these records if they so choose.

Notably, Section 132-1.4 uses the terms “disclose” and “release” throughout the section. Although an adjacent statutory section, G.S. 132-1.4A, differentiates between these terms in the specific context of audio-visual recordings in the custody of law enforcement agencies, that statute was enacted later, and Section 132-1.4 does not appear to make any distinction between the two terms. For example, Section 132-1.4(d) references a court order for both release and disclosure of information. Subsection (e) states, “If a public law enforcement agency believes that release of information that is a public record under subdivisions (c)(1) through (c)(5) of this section will jeopardize the right of the State to prosecute a defendant…, it may seek an order from a court of competent jurisdiction to prevent disclosure of the information” (emphasis added). Additionally, cases dealing with Section 132-1.4 more broadly seem to use disclosure and release interchangeably. See e.g., Wind v. City of Gastonia, 226 N.C. App. 180, 190 (N.C. Ct. App. 2013)(ordering disclosure, rather than release, of copies); Gannett Pacific Corp. v. N.C. State Bureau of Investigation, 164 N.C. App. 154, 157 (N.C. Ct. App. 2004)(“Because records of criminal investigations and records of criminal intelligence information are not public records, a party seeking disclosure of such records must seek release ‘by order of a court of competent jurisdiction’”). Despite the variation in terminology, disclosure and release likely have the same meaning in the Section 132-1.4 context.

Back to Shady Sam, then: The Aboveboard Police Department is a public law enforcement agency under G.S. 132-1.4(b)(3). It collected the report and statements about Sam’s conduct to solve an alleged crime, making these records qualify as records of criminal investigations under G.S. 132-1.4(a). Because these records are not confidential, the Aboveboard Police Department would not violate Section 132-1.4 by releasing copies to the council without a court order. However, the fact that the council will use these records to evaluate Sam’s continued employment implicates an additional statute, Section 160A-168.

The Personnel File Privacy Statute

Section 160A-168 (153A-98 for counties) provides that personnel file information is confidential and “may only be disclosed as provided in this section.” G.S. 160A-168(a)(c). Personnel file information is any information in any form gathered by the city with respect to an employee related to some personnel action or decision involving that employee. G.S. 160A-168(a). Personnel file information may only be disclosed to select individuals or under select circumstances. G.S. 160A-168(c).

Notably, Section 160A-168 only uses the terms “disclose,” “disclosure,” “inspect”, and “examine.” While the word “release” appears in the section, it refers to a signed, written release or the release of information, not copies of records. G.S. 160A-168(c)(5),(6),(7),(c2). Does that mean that Section 160A-168 does not permit the release of copies? Unlike with Section 132-1.4, case law clarifies that the personnel file privacy statute only permits inspection. In Release of Silk Plant Forest Citizen Review Committee’s Report and Appendices v. Barker, the North Carolina Court of Appeals reflected on the legislature’s use of the word “examine” as opposed to “copy.” While the information deemed public under the statute “…can not only be examined, [but] can be copied, and consequently disseminated to the general public…,” the non-public records “…can only be ‘examine[d]’ when so ordered by the trial court.” 216 N.C. App. 268, 273 (N.C. Ct. App. 2011). Section 160A-168 therefore permits inspection only, not release of copies, for the information and records that are confidential under subsection (a). This distinction is subtle but important, given that subsections (e) and (f) impose criminal penalties for violating this statute.

The Public Records Law and Personnel File Privacy Statute Interplay

We’ve determined that the police report and witness statements qualify as records of criminal investigations. Does transmitting them to the Aboveboard council also make them confidential personnel file information? Section 160A-168(a) provides that personnel file information relates to personnel decisions involving an employee, including but not limited to, an employee’s promotion, selection or nonselection, performance, demotions, suspensions, and terminations of employment. In other words, to be personnel file information under the statute, the record at issue must be used in connection with some personnel decision or action. News & Observer Pub. Co., Inc. v. Poole, 330 N.C. 465, 476-77 (N.C. 1992)(interpreting state personnel privacy act that has similar statutory language). In Shady Sam’s scenario, Aboveboard Town Council wants access to the criminal investigation documents to evaluate Sam’s continued employment. Because Aboveboard collected the report and statements in connection with potential personnel decisions about Sam, the report and statements also qualify as personnel file information under G.S. 160A-168(a).

Imagine then that Shady Sam wants to inspect his personnel file. Since the report and statements qualify both as criminal investigation records and personnel file information, which statute governs their disclosure? Subsection (a) of G.S. 160A-168 states that its protections apply “[n]otwithstanding the provisions of 132-6 or any other general law or local act concerning access to public records…”. Thus, Section 160A-168 applies regardless of public records law and trumps the procedures for criminal investigation records in G.S. 132-1.4.

Under G.S. 160A-168(c)(1), employees have the right to examine their personnel files. However, subsection (c1)(2) allows Aboveboard to withhold from inspection “[i]investigative reports or memoranda and other information concerning the investigation of possible criminal actions of an employee, until the investigation is completed and no criminal action taken, or until the criminal action is concluded.” Consequently, Aboveboard can withhold the reports and witness statements until the investigation is closed or any criminal action has ended. After that point, Sam is entitled to review the reports and witness statements as well. Unlike Section 132-1.4, Section 160A-168 does not permit the release of copies at any point, so inspection is Sam’s only option.