Court of Appeals Affirms Order Dismissing Media Entities’ Petition for Release of Law Enforcement Recordings in Andrew Brown Case

After Andrew Brown, Jr. was shot and killed in Elizabeth City in April 2021 by law enforcement officers who were attempting to serve arrest and search warrants on him, several media entities attempted to obtain law enforcement agency recordings of the events. The companies sought the release of those recordings from the superior court pursuant to G.S. 132-1.4A(g) and filed their request six days after the shooting using a form petition created by the Administrative Office of the Courts, AOC-CV-270. A superior court judge denied the request based on his conclusion that release would create a serious threat to the fair and orderly administration of justice and that there was a need to protect an active internal or criminal investigation. After the Pasquotank County district attorney announced that he would not seek charges related to the incident, the companies filed another petition on form AOC-CV-270 requesting release of the recordings. A different superior court judge dismissed this later petition on the basis that the petitioners were required to file a regular civil action to obtain the release of recordings under G.S. 132-1.4A(g). The media companies appealed, and, in an opinion published last week, the Court of Appeals affirmed the superior court’s ruling. See In re Custodial Law Enforcement Agency Recordings, No. COA22-446, ___ N.C. App. ___ (2023).

Disclosure and Release of Law Enforcement Agency Recordings. G.S. 132-1.4A provides two ways of accessing law enforcement agency recordings: (1) disclosure, which consists of making a recording available for viewing or listening to by the requesting party and (2) release, which is providing the requesting party with a copy of the recording.

Disclosure. Law enforcement agency recordings may be disclosed (that is, shown) only to a person whose image or voice is in the recording or that person’s personal representative. Disclosure in general is governed by G.S. 132-1.4A(c), (d), and (e). (Special rules governing the disclosure of a recording that depicts death or serious bodily injury, G.S. 132.14A (b1), (b2), (b3), and (b4), were enacted after the petitions were filed in the instant case. See S.L. 2021-138 (S 300) (discussed here).)

Release. In addition to the custodial law enforcement agency, two categories of requestors may request that a superior court order the release of law enforcement agency recordings: (1) persons authorized to receive disclosure; and (2) other persons or entities.

A person authorized to receive disclosure may petition the superior court in any county where any portion of the recording was made for an order releasing the recording. See G.S. 132-1.4A(f). The petition must be filed on a form approved by the Administrative Office of the Courts (AOC) (see AOC-CV-270) and must identify the recording sought. The head of the custodial law enforcement agency must be given notice and an opportunity to be heard. There is no fee for filing the petition.

Other types of requestors must “file an action in superior court” in any county where any portion of the recording was made for an order releasing the recording. See G.S. 132.1.4A(g). These requestors also must identify the recording sought, and the following persons must be notified and given an opportunity to be heard: (a) the head of the custodial law enforcement agency; (b) any law enforcement agency personnel whose image or voice is in the recording and the head of that person’s employing law enforcement agency; and (c) the district attorney.

The form release petition created by the AOC, AOC-CV-270, contains two check boxes so that the requestor may indicate whether release is sought pursuant to G.S. 132-1.4A(f) by a person authorized to receive disclosure or pursuant to G.S. 132-1.4A(g) by another entity. The form notes that in the latter case, a filing fee applies.

In re Custodial Law Enforcement Agency Recordings, No. COA22-446, ___ N.C. App. ___ (2023). As previously noted, the trial court in in the instant case dismissed the media companies’ petition on the basis that the petitioner’s failed to file an action as required by G.S. 132A-1.4A(g). The petitioners appealed, arguing that the judge misconstrued G.S. 132-1.4A. The Court of Appeals affirmed the trial court’s ruling.

The Court of Appeals held that a party seeking release of recordings pursuant to G.S. 132-1.4A(g) is required to initiate such a request by filing an ordinary civil action rather than a petition using an AOC form. The appellate court reasoned that the term “action” used in G.S. 132-1.4A(g), is a term of art defined in G.S. 1-2 as “an ordinary proceeding in a court of justice.” The Court noted its determination in Charns v. Brown, 129 N.C. App. 635 (1998), that a party seeking to compel disclosure of public records under G.S. 132-9, which authorizes “[a]ctions” to compel disclosure, must file a civil action accompanied by a summons. The Court then pointed to the use of differing terms in G.S. 132-1.4A(f) and (g). While the latter statutory subsection refers to an action, subsection (f) directs a person seeking disclosure to file a petition on a form approved by the AOC. Had the legislature intended for an AOC form to also be used for requests under subsection (g), it would have so provided, the Court concluded.

Future requests for release. The import of the Court’s holding for persons or entities seeking release under G.S. 132-1.4A(g) is straightforward. Do not use AOC-CV-270. Instead, file a complaint and ensure compliance with the Rules of Civil Procedure, including the rules governing service of process.