FIRST FOR A REASON Info & Ideas About the First Amendment & Media Law



Reporting on child fatalities is difficult. It presents a collision between the need for a thorough and orderly investigation against intense public concern and, sometimes, outrage. Medical records may be implicated. And the death of a child is always devastating. If the child was under DSS care or supervision, though, that list of challenges also includes the fact that some people may be defensive. Why did a child -- already known to be at risk – die?

Newspapers have played an important role in informing the public about these cases, which in turn has resulted in changes to the law. Prompted in large part by the work of Rose Post and the Salisbury Post investigating when children had been injured while under DSS supervision, the public now has a right to certain information when a child under DSS care or custody dies or nearly dies. The statute to read is G.S. § 7B-2902 (attached). It says that when a child dies or almost dies from suspected abuse, neglect, or maltreatment, there must be a written summary of actions taken or services rendered after learning that the child might need protection. The statute specifically calls for the findings and information summary to include

a. The dates, outcomes, and results of any actions taken or services rendered.

b. The results of any review by the State Child Fatality Prevention Team, a local child fatality prevention team, a local community child protection team, the Child Fatality Task Force, or any public agency.

c. Confirmation of the receipt of all reports, accepted or not accepted by the county department of social services, for investigation of suspected child abuse, neglect, or maltreatment, including confirmation that investigations were conducted, the results of the investigations, a description of the conduct of the most recent investigation and the services rendered, and a statement of basis for the department's decision.

If a person is criminally charged with the death or near-death – or if the person would have been charged but for the fact that the person died – then the findings and information is a public record. Within five working days of a request for the summary, the public agency must consult with the DA and release the summary unless there’s a reasonable belief that release (1) isn’t authorized, (2) is likely to cause harm to a minor still in the injured child’s household; (3) is likely to jeopardize the State’s ability to prosecute or the defendant’s right to a fair trial; (4) is likely to undermine a criminal investigation or (5) is not authorized by federal law. If you request and are denied the summary, you have the right to ask a superior court to consider the case immediately.

Running alongside the administrative evaluation of the situation often is a criminal investigation. Your rights to those records are found in G.S. § 132-1.4 – the criminal records portion of the Public Records Law. Under that statute, you are entitled to know (1) the time, date, location and nature of any apparent criminal violation; the name, sex, age, address, employment, and alleged violation of anyone arrested, charged or indicted; (3) the circumstances surrounding an arrest, if there has been one, as well as a description of any items seized in connection with the arrest; (4) the contents of any 911 or other emergency call; (5) the contents of law enforcement communications over public airways; and (6) the name, sex, age, and address of a complaining witness. The name and address of a complaining witness may be withheld temporarily if there is reason to believe that person would be in danger from release of the information. Otherwise, if law enforcement wants to withhold any of this information, they must apply to the court for a sealing order, at which point a judge has to balance the rights of the public against the rights of the State and the defendant to a proper trial.

If search or arrest warrants are issued, those become public record once they are returned, and returned means returned, regardless of whether they have been executed. Therefore, a warrant is public once it makes its way back to the clerk of court. A search warrant must be executed within 48 hours from the time of issuance. If it’s not executed, it must be marked “not executed” and returned to the clerk “without unnecessary delay.” G.S. §15A-248. If it is executed, it must be returned to the clerk -- along with an inventory of items seized -- “without unnecessary delay.” G.S. § 15A-257

The law states clearly that returned warrants “may be withheld only when sealed by court order,” but the statute doesn’t give any guidance with regard to when a court should enter such an order. G.S. § 132-1.4(k). Though our Court of Appeals has held that the First Amendment doesn’t create a Constitutional right of access to warrants, the Court found that sealing orders are only appropriate “when sealing is ‘essential to preserve higher values and is narrowly tailored to serve that interest.’”

In Re Investigation Into The Death Of Nancy Cooper. In the Cooper case, no suspect had been charged or even arrested, and the homicide investigation was ongoing. Arguably the absence of any of these factors could give rise to challenge a sealing order.

One last note about criminal records: The criminal records statute makes crystal clear that the use of a public record in connection with a criminal investigation has no bearing on its status as a public record. G.S. § 132-1.4(f). Therefore, if something is a public record, it doesn’t disappear from view simply because it has become evidence in an investigation. If the City Manager is charged with embezzling funds from City coffers, the financial records of the City are still public records, even if they have been turned over to the SBI, the DA or anyone else.

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Stevens, Martin, Vaughn & Tadych, PLLC

Providing legal counsel to traditional and social media and strategic communicators

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