Criminal Investigations and Public Records

The Court of Appeals held earlier this month in In re Public Records Request to DHHS, 2022-COA-284, ___ N.C. App. ___ (May 3, 2022), that the State had no authority to initiate an action in superior court seeking to prevent the disclosure of documents related to its investigation of the death of John Neville, who died while imprisoned in the Forsyth County Law Enforcement Detention Center. This post will review that decision as well as the rules that govern the disclosure of records related to a criminal investigation.

The investigation into John Neville’s death. As reported by the Charlotte Observer, John Neville died December 4, 2019, “three days after prosecutors and a federal lawsuit allege that [five] detention officers and [a jail nurse] ignored his medical distress and had him pinned in a prone restraint in a cell for nearly an hour.” The State Bureau of Investigation (SBI) looked into Neville’s death. Ultimately, the six defendants just mentioned were charged with involuntary manslaughter. The Charlotte Observer reported that in April of this year a Forsyth County grand jury returned a true bill of indictment against the nurse but declined to indict the former detention officers.

The public records request. Back in the summer of 2020, the SBI provided its investigative file to the county medical examiner who investigated Neville’s death.  Around the same time, reporters submitted a public records request to North Carolina Department of Health and Human Services (DHHS) for documents relating to Neville’s death. DHHS informed the Forsyth County District Attorney that it planned to turn over the responsive records, which included portions of the SBI file.

The State’s objection. The district attorney filed in Forsyth County Superior Court an objection to the release of the records and a request for a temporary protective order, arguing that the records were not subject to disclosure while criminal cases involving them were pending. The trial court granted the temporary protective order and scheduled a hearing regarding disclosure. A coalition of media companies moved to dismiss the State’s action. They argued that the district attorney lacked authority to prevent another agency from producing public records – notwithstanding the State’s argument that the records included items “not otherwise subject to public disclosure while criminal cases involving them are . . . pending” and that release could impact the defendants’ right to an impartial trial.

Rulings by the superior court and Court of Appeals. The trial court dissolved the protective order and dismissed the action based on its determination that the transmittal of the records to the Medical Examiner, a public agency under the Public Records Act, made them public and outside the protections of G.S. 132 -1.4. The trial court relied on the Supreme Court’s holding in News & Observer Pub. Co. v. Poole, 330 N.C. 465 (1992), that when SBI reports became part of the records of a public agency subject to the Public Records Act, they were protected only to the extent the public agency’s records were protected. The State appealed. The Court of Appeals dismissed the appeal and remanded the case to the trial court with instructions to dismiss the underlying proceeding for lack of jurisdiction. The Court determined that the State’s action was procedurally defective due to the State’s failure to name the reporters, media coalition, or DHHS as a party and to cause the issuance of a summons. The Court further held that the district attorney had no authority to file a request for a temporary protective order to prevent the disclosure of the records. While G.S. 132-9 permits a person making a public records request to initiate judicial action to enforce its request, the Public Records Act does not allow a governmental entity to seek a declaratory judgment from a trial court that records are not subject to disclosure. Slip op. at ¶ 20 (citing McCormick v. Hanson Aggregates Southeast, Inc., 164 N.C. App. 459 (2004)).

Must the records be disclosed?  The Court of Appeals did not reach the issue of whether the documents requested are public records within the meaning of the Public Records Act. The initial determination of that matter will be made by DHHS, which appears to have determined that they were public records as the agency was prepared to provide the documents before the district attorney filed the action in superior court. If DHHS were to change its position, then the parties seeking disclosure could file an action in superior court seeking to compel that disclosure. G.S. 132-9(a).

For broader context, are records of criminal investigations public? Generally, no. G.S. 132-1.4 excludes records of criminal investigation conducted by public law enforcement agencies from the term public records as defined by G.S. 132-1.

Records of criminal investigations includes records or information about a person or persons compiled by public law enforcement agencies for purposes of attempting to prevent or solve violations of the law. G.S. 132-1.4(b)(1). These records include information derived from witnesses, laboratory tests, surveillance, investigations, confidential informants, photographs, and measurements. Also included are records, worksheets, reports, or analyses prepared or conducted by the North Carolina State Crime Laboratory at the request of any public law enforcement agency in connection with a criminal investigation.

A public law enforcement agency is a municipal police department, a county police department, a sheriff’s department, a company police agency and any State or local agency, force, department, or unit “responsible for investigating, preventing, or solving violations of the law.”

While the public has no statutory right to access records of criminal investigations conducted by public law enforcement agencies, they may be released voluntarily or pursuant to a court order. G.S. 132-1.4(a); see also David M. Lawrence, Public Records Law for North Carolina Local Governments 196 (2d ed. 2009) (stating that the statute “simply denies any right of public access; it does not prohibit the release of the records by a law enforcement agency”). The rules governing disclosure of these records continue to apply after they have been transmitted to a district attorney or other attorney authorized to prosecute a violation of law. G.S. 132-1.4(g).

Why then is some incident or arrest information public? Notwithstanding the broad definition for “records of criminal investigation,” the following information gathered by public law enforcement agencies is public record:

  • Time, date, location and nature of a violation reported to a public law enforcement agency;
  • Name, sex, age, address, employment, and alleged violation of law of a person arrested, charged, or indicted;
  • Circumstances surrounding an arrest including the time and place of the arrest, whether the arrest involved resistance, possession or use of weapons, or pursuit, and a description of any items seized in connection with the arrest;
  • Contents of 911 calls except for contents that reveal the natural voice, name, address, telephone number, or other information that may identify the caller, victim, or witness (thus, these contents may be provided in the form of a written transcript or altered voice reproduction);
  • Contents of communications among employees of public law enforcement agencies that are broadcast over the public airways; and
  • Name, sex, age, and address of a complaining witness (though this may be temporarily withheld if release is likely to threaten a witness’s health or safety or compromise an investigation).

G.S. 132-1.4(c), (d).

A public law enforcement agency may shield otherwise public information described in the first five categories listed above by seeking a court order preventing disclosure on the grounds that it would jeopardize the right of the State to prosecute a defendant or the right to a defendant to a fair trial or will undermine an ongoing or future investigation. G.S. 132-1.4(e). And perhaps not surprisingly, requestors and law enforcement agencies do not always agree about what information falls in the “circumstances surrounding an arrest” category.

Additional public records. In addition, the following court records are public and may be withheld only when sealed by court order:  arrest and search warrants that have been returned by law enforcement agencies, indictments, criminal summons, and nontestimonial identification orders. G.S. 132-1.4(j).

So are the records regarding Neville’s death public? As I’ve already mentioned, the Court of Appeals in In re Public Records Request to DHHS did not decide whether the documents the media coalition requested were public records. The trial court determined that the transmittal of those records to the Medical Examiner, a public agency under the Public Records Act, see G.S. 130A-377 -385, made them public and outside the protections of G.S. 132-1.4. The State argued that the SBI shared the records with the county medical examiner for purposes of a joint ongoing investigation. Should the issue of whether the records are public be further litigated (which, it appears could only result from DHHS’s decision not to produce the records) the State might argue that the Medical Examiner is a public law enforcement agency as it is responsible for investigating potential violations of law. See G.S. 130A-383 (conferring jurisdiction upon a medical examiner to investigate the death of any person “resulting from violence, poisoning, accident, suicide or homicide; occurring suddenly when the deceased had been in apparent good health or when unattended by a physician; occurring in a jail, prison, correctional institution or in police custody” and occurring in other specified facilities and circumstances or “under any suspicious, unusual or unnatural circumstance”). If the Medical Examiner were deemed a public law enforcement agency, then records it compiles in the investigation of a person’s death might be considered to be records of criminal investigations. Given, however, the ease and regularity with which a person currently may request and obtain records from the Office of the Chief Medical Examiner, this interpretation seems contrary to current practice.