If you’re a journalist who has ever sought police body camera or dashboard camera recordings, you probably used the forms provided by the North Carolina Administrative Office of the Courts (“AOC”) designed just for these requests. However, owing to two recent North Carolina Court of Appeals cases, you’ll have to approach your next request differently – at least for now.
Back in 2016, the North Carolina General Assembly passed a law (N.C. Gen. Stat. §132-1.4A) to govern the release of law enforcement agency recordings, including recordings from police body cameras. There are two statutory paths for requesting release of law enforcement recordings – one for a person (or representative of that person) who appears in the recordings, and one for everyone else – including law enforcement agencies who wish to make the recordings public. The statute governing release to the general public, including the news media, says, “Any custodial law enforcement agency or any person requesting release of a recording may file an action in the superior court in any county where any portion of the recording was made for an order releasing the recording” (emphasis added).
In response to this statute, the AOC created a series of helpful forms to guide requests for these recordings. Since 2016, hundreds – if not thousands – of petitions for release of law enforcement recordings were filed across the state using the AOC forms. In fact, in December 2022, the North Carolina Supreme Court ruled on a case in which the City of Greensboro used one of the forms to seek release of police recordings back in 2017. Justice Hudson wrote the final opinion and no issue as to the use of the form was raised or analyzed.
However, in February 2023, the North Carolina Court of Appeals issued a ruling in In Re: Custodial Law Enforcement Agency Recordings (COA22-446, Pasquotank County) that upended this process. In that somewhat convoluted case, the petitioner media organizations used the AOC-CV-270 form to request release of any and all custodial law enforcement agency recordings made in connection with the 2021 killing of Andrew Brown, Jr., in Pasquotank County. In the lower court, Judge Tillett ruled unexpectedly that the petitioners could not be successful because the statute required the party or parties seeking the release to file an “action,” and the petitioners had filed only a petition using the AOC form, which was meant to be used only by individuals who appeared in the recordings.
After Judge Tillett’s unexpected take on the form use, the media organization petitioners asked the North Carolina Court of Appeals to weigh in. The Court of Appeals agreed that if the legislature had intended an AOC form be used in conjunction with these requests for recordings, it would have specifically instructed as such. The court wrote that “our legislature intended two different procedures for individuals seeking release of custodial law enforcement recordings: an expedited petition process for certain enumerated individuals, and an ordinary civil action for all others. We hold that Judge Tillett properly dismissed Petitioners’ petition for lack of standing because they failed to ‘file an action’ as required by” the statute.
The petitioners have asked the North Carolina Supreme Court to review this decision, but there’s no telling when or if that will happen.
Shortly after they released their opinion in the Andrew Brown matter, the Court of Appeals made a similar ruling in another case and reinforced their determination that using the AOC forms to petition for release of custodial law enforcement recordings did not equate to “filing an action” pursuant to G.S. § 132-1.4A(g). In In Re: Custodial Law Enforcement Agency Recordings (COA22-399, Orange County), the media petitioners sought body and dashboard camera recordings, but the government did not appeal the order allowing release. Rather, Michael Savarino – a person who appeared in the video (and who also happens to be former Duke Coach Mike Krzyzewski’s grandson) – appealed the decision to release the recordings, despite not having standing under the statute nor being a party to the case. As counsel for the media petitioners, SMVT moved to dismiss the appeal based on lack of standing, but that was denied.
So what does this mean for journalists and members of the public who want to seek law enforcement recordings now? For the time being, unless and until the North Carolina Supreme Court says otherwise, it is wise to forego use of the AOC forms and instead file a civil action requesting release. What should that look like? Because it has not been done routinely up to this point, there isn’t a standard complaint and/or any guidance regarding form or content and neither Court of Appeals opinion gives a lot of guidance on the proper form or parties will constitute an “action” under the statute.. If you want to request the release of law enforcement recordings, we at SMVT recommend speaking to an attorney about filing an action under N.C. Gen. Stat. §132-1.4A(g).
Read our previous column on law enforcement recordings here and here.