In March 2021, several news organizations filed a petition in Alamance County Superior Court seeking the release of law enforcement recordings of an “I Am Change” march that took place in Graham, North Carolina in October 2020. Marchers and law enforcement had clashed, and several people were arrested. The superior court held a hearing and ultimately ordered all of the requested recordings released without redaction.
After assessing the eight statutory considerations, the superior court explained that even though the release of the recordings would reveal highly sensitive and personal information that could harm a person’s reputation or safety, it did “not have the authority to [c]ensor this information absent a legitimate or compelling [] state interest to do so.” In re The McClatchy Co., No. 29A23, ___ N.C. ___ (May 23, 2024). The court noted that it gave “great weight to transparency and public accountability with regard to police action” and that failure to release the information could “undermine the public interest and confidence in the administration of justice.” Id. The Graham Police Department (GPD) appealed.
The Court of Appeals, over a dissent, vacated the release order and remanded for additional findings of fact. The petitioners appealed. On appeal, the GPD argued that the trial court lacked subject matter jurisdiction over the petition because the media companies were required to file a civil action rather than a petition. See In re Custodial L. Enf’t Agency Recording, 288 N.C. App. 306, 311 (2023) (so holding).
The North Carolina Supreme Court, in an opinion authored by Justice Allen, rejected GPD’s contention that the trial court lacked subject matter jurisdiction because the petitioners filed a petition instead of a complaint. The Court then proceeded to hold that the trial court misunderstood the scope of its authority in ordering release, explaining that a trial court granting such release may place any conditions or restrictions on the release that it deems appropriate.
This post will review G.S. 132-1.4A, the North Carolina Supreme Court’s opinion in In re The McClatchy Co., ___ N.C. ___ (May 2024) [hereinafter McClatchy], and will consider McClatchy’s import for those seeking and considering release.
Background. We have written several blog posts in recent years about the disclosure and release of custodial law enforcement agency recordings (dubbed “CLEAR” in McClatchy) pursuant to G.S. 132-1.4A. CLEAR, which include recordings from body-worn cameras, dashboard cameras, and other devices used by law enforcement officers when carrying out law enforcement duties, are not public records. G.S. 132-1.4A(b). Thus, the public has no statutory right to access or view them.
Disclosure and release of CLEAR. 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. CLEAR 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 set forth in subsections (b1) – (b3) govern the disclosure of a recording that depicts death or serious bodily injury.
Release. In addition to the custodial law enforcement agency, two categories of requestors may request that a superior court order the release of CLEAR: (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 as originally created by the AOC, AOC-CV-270, contained two check boxes so that the requestor could indicate whether release was 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 noted that in the latter case, a filing fee applied. The media entities in McClatchy filed their request on this form.
After the Court of Appeals in In re Custodial L. Enf’t Agency Recording, 288 N.C. App. 306 (2023) 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 AOC amended AOC-CR-270 to be used only for petitions under G.S. 132-1.4A(f).
McClatchy: Requests for release under G.S.132-1.4(g) may be made by petition. As previously noted, the North Carolina Supreme Court in McClatchy rejected the argument that the trial court lacked subject matter jurisdiction because the media entities filed a petition rather than a complaint. The Court reasoned that the word action as used in G.S. 132-1.4(g) is ambiguous and that similarities between subsections (f) (providing for release to persons entitled to disclosure) and (g) (providing for release generally) reflect a legislative intent that proceedings under both follow substantially the same procedures. Both require expedited hearings, both require the same content, and the decision-making criteria for both are the same. Justice Berger, joined by Chief Justice Newby dissented, expressing the view that the statute set forth two separate mechanisms for obtaining CLEAR.
Trial Court’s Authority. The McClatchy Court noted that the trial court considered the eight statutory standards and determined that some weighed in favor of release and some did not. Yet the supreme court determined that the trial court departed from the statutory scheme when it stated that it did not have the authority to censor information absent a legitimate or compelling state interest. The Court concluded that the trial court’s statements regarding the limits on its statutory authority were reversible error.
The Court explained that a trial court’s discretion does not end when it concludes that the relevant standards weigh in favor of release. In fashioning its order, a trial court must appreciate its authority to condition or restrict the release. Had the trial court properly conceived of its authority, the Court reasoned, it might have ordered redactions to or limited the release of the recordings, especially given its findings that releasing them would reveal highly sensitive personal information that could threaten a person’s reputation or safety.
Now what? Perhaps the AOC will revert to the previous version of AOC-CV-270, which allowed for petitions under G.S. 132-1.4A(f) and (g). It certainly doesn’t have to, however, as only subsection (f) requires the development of an AOC form. We will stay tuned to see what is released in the next batch of forms.
The McClatchy Court’s interpretation almost certainly will make it less cumbersome for law enforcement agencies that seek release on their own initiative as they will not be required to file an action against themselves and serve their own agencies with a civil summons.
Superior court judges considering petitions and actions for release should be careful to acknowledge their discretion to order redactions and/or limited release. A trial judge may wish to first expressly note its consideration of the relevant factors and announce whether those factors weigh in favor of granting or denying a request for release. If the trial judge finds that the factors weigh in favor of release, the judge may then wish to expressly acknowledge the judge’s authority to place conditions or restrictions on the release in his or her discretion, and then order the records released (subject to any conditions or restrictions the judge chooses to impose).