Probation records are privileged. That protection stems from an old statute, G.S. 15-207, which was enacted in 1937—the same year the original North Carolina Probation Commission was established. See N.C. Dep’t of Social Rehabilitation and Control, Invisible Bars: Probation (1974). Those were the days of the so-called “medical model” of corrections, a rehabilitation-oriented approach to punishment in which crime was viewed as a disease to be cured. The statute was intended to promote candor between offender and officer (like between a doctor and a patient), so supervision could be tailored to the particular needs and circumstances of the probationer. Officers were there to help, and to help they needed honest communication from the probationers in their charge. See Williams v. New York, 337 U.S. 241, 249 (1949) (“Probation workers making reports of their investigations have not been trained to prosecute but to aid offenders.”).
Times have changed, but the statute is still on the books. It says:
“All information and data obtained in the discharge of official duty by any probation officer shall be privileged information, shall not be receivable as evidence in any court, and shall not be disclosed directly or indirectly to any other than the judge . . . , unless and until otherwise ordered by a judge of the court or the Secretary of Adult Correction.”
There aren’t many appellate cases applying the statute. In State v. Gallion, 282 N.C. App. 305 (2022) (which Danny mentioned in this prior post), a defendant who had been wearing an electronic monitor argued that Probation violated G.S. 15-207 by releasing his electronic monitoring information to law enforcement without a court order. The Court of Appeals disagreed, noting among other reasons that the privilege was DAC’s to waive, and DAC had waived it by policy. In State v. Craft, 32 N.C. App. 357 (1977), the court concluded that a trial judge’s denial of a defendant’s motion to suppress evidence seized by his probation officer was an “order[] by a judge” within the meaning of G.S. 15-207, sufficient to overcome the statute’s qualified privilege for probation-related information.
The protection of Probation records can be an issue for prosecutors and defendants alike. When a defendant who is on probation is charged with a new crime—perhaps stemming from a probation search, drug testing, or electronic monitoring—the probation file could certainly include material and potentially exculpatory evidence that a defendant might want to review. Phil co-authored a helpful article on that perspective for the N.C. Advocates for Justice in 2021.
The State, meanwhile, might need information in the Probation file to effectively prosecute a probation violation or a related criminal charge. For new criminal charges, the State may have discovery obligations. As far as statutory discovery goes, it’s not clear that Probation is a “law enforcement [or] investigatory agenc[y]” within the meaning of G.S. 15A-903(a). Constitutionally, courts in other jurisdictions have concluded that defendants are entitled under Brady to information in a probation file that, for example, bears on the credibility of a significant witness. See United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988) (suggesting that the trial court should review the file in camera and release to the defendant all information of this character). However, the cases haven’t carefully explored the situations in which DAC’s files—like those of a social services department, for example—would be considered within the possession, custody or control of the prosecutor. In a case decided before G.S. 15A-903 was enacted, the Court of Appeals concluded that a general discovery motion did not extend to “the material in defendant’s probation records,” as it “was not in the possession of the State’s attorney.” See State v. Russell, 92 N.C. App. 639, 650 (1989). To the contrary, the court said, “the only way it could be obtained was through N.C.G.S. § 15-207.” Id.
Historically, DAC would require prosecutors to obtain a court order or make an individualized request to the Secretary of Adult Correction to obtain records in supervisee’s case file. Last year, the Secretary issued a memorandum granting a standing authorization to release certain parts of an active supervisee’s file to state and federal law enforcement agencies, prosecutors, courts, and state boards and commissions. The blanket authorization excludes certain sensitive information (medical and educational records, for example). For those records, a court order or individualized authorization from the Secretary remains necessary. Probation officers and prosecutors should be aware of the streamlined file access enabled by the memo. At the same time, defendants might frame it as a rebuttal to the premise underlying Russell, and therefore a pathway to broader discovery of probation records.
