The climate surrounding officer-involved fatalities is, in a word, dynamic. Whether a shooting or shootout, deadly force incident to an arrest or the service of a warrant, or a high-speed chase ending in death, the public interest in accountability of law enforcement conduct is inarguably heightened since the deaths of George Floyd, Breonna Taylor, Andrew Brown, and others.
In response to these incidents, some law enforcement agencies choose to “close ranks” and keep information from the public even when the law makes the information public or provides a means of accessing records. Knowing the general public policies and processes for obtaining public records – and arguing against them being withheld when they are – can help reporters “peel the onion” to obtain public information and records even when authorities resist.
The first step is knowing the universe of public records that you can request. Public records are broadly defined by Chapter 132 of the North Carolina General Statutes as all paper or electronic documents “made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions.” We are free to inspect and obtain copies of public records and information free or at minimal cost. There is a large body of case law that makes it clear that a public agency bears the burden of establishing that a statutory exemption to the Public Records Law applies.
Generally speaking, records of criminal investigations and surveillance by law enforcement are not within the definition of public records under the public records law. However, N.C. Gen. Stat. § 132-1.4(c) makes clear that certain information about a criminal matter is public, including the basic facts (time, date, location), the name of the person arrested, the circumstances of the arrest, the 911 calls, law enforcement communications and the names of complaining witnesses.
Law enforcement may temporarily “withhold the name or address of a complaining witness if release of the information is reasonably likely to pose a threat to the mental health, physical health, or personal safety of the complaining witness or materially compromise a continuing or future criminal investigation or criminal intelligence operation.” However, the information must be released “as soon as the circumstances that justify withholding it cease to exist.”
If you are denied information based on the “complaining witness” provision, you can apply to the court for an order compelling disclosure of the information where the court must “balance the interests of the public in disclosure against the interests of the law enforcement agency and the alleged victim in withholding the information,” and this hearing should be set right away. Law enforcement does not need a court order to withhold public information pursuant to this subsection, but as soon as the rationale for withholding the public information abates (i.e. the suspect is arrested and in custody), the information must be released.
Similarly, if a law enforcement agency believes that release of a public record will jeopardize a fair trial or will undermine an ongoing or future investigation, the agency can seek a court order to prevent release – in this case, they do need an order. If that’s the reason given for the public information to be withheld, ask for a copy of the order. If it does not exist or law enforcement tells you it is in process, tell law enforcement that your organization would like to be heard and contact your counsel to coordinate representation at the hearing.
Additionally, it is important to know that the use of a public record in connection with a criminal investigation or the gathering of criminal intelligence does not affect its status as a public record pursuant to N.C. Gen. Stat. § 132-1.4(f). Our best example to illustrate this is a situation in which the SBI was investigating a DUI ticket-fixing scheme. The SBI came in and took all of the files that were intentionally involved off the shelves of the Clerk’s office as “evidence” and refused to identify them. When that was challenged, the judge said something to the effect of, “Does the SBI have a copy machine? I understand that the original files may be evidence but the underlying records are public, and you’re not telling me any good reason why copies of those files shouldn’t be available. The statute is clear.”
Similar to records of criminal investigation, personnel records of public employees (as well as those applying for employment by a public entity or former employees) are not public records. Notwithstanding this broad statement, each of the personnel statutes makes clear that the certain information with respect to each public employee is a matter of public record, including name, age, employment dates, contract terms, position, title, salary information, change in position classification, disciplinary actions and current office assignment.
Typically, when law enforcement officers discharge their weapons in connection with their work, they are put on “administrative duty,” and the SBI is brought in to investigate the shooting. We argue that an officer being placed on administrative duty is a change in “position classification” and that shift is a public record; however, we have seen law enforcement take the position that this shift is not a change in position classification and is grounds for declining to identify the officers involved.
If you hear this argument, know that it is not rock-solid and is based only on commentary made by the Prof. David Lawrence, formerly of the North Carolina School of Government. There is no case authority supporting Prof. Lawrence’s interpretation, and frankly his narrow interpretation flies in the face of the language of the personnel statutes. All other public policy and case authority that lands on the side of transparency and openness.
Law Enforcement Recordings
In 2016, the General Assembly enacted N.C. Gen. Stat. § 132-1.4A to address the proliferation of dashboard and body camera recordings made by law enforcement personnel. The statute makes clear that such recordings are not public records and are not personnel records.
The statute also provides the processes to view or obtain a copy of law enforcement recordings. If your image or voice is in the recording(s), you or your representative can seek disclosure of the recordings from law enforcement, and if denied, ask the court to review the denial. If you are entitled to disclosure of the recordings, you can also seek release of the recordings through the courts. If your voice or image is not in the recordings, you can petition the court to release the recordings you seek. Absent some rare circumstances, a court order must be issued before law enforcement recordings can be released. Forms created by the Administrative Office of the Courts can assist with the process. See forms here.
When describing the recordings, be mindful that the statute requires the requester to:
[S]tate the date and approximate time of the activity captured in the recording, or otherwise identify the activity with reasonable particularity sufficient to identify the recording to which the action refers.
In officer-involved shooting or fatal chase situations, after giving the date, known locations and approximate timing, we typically request the recordings from “law enforcement’s first contact with [the person, the car] through the entirety of the incident until the law enforcement clear the scene.” It may be more than you ultimately want, but it gives you room to bargain. We have not seen law enforcement offer more than is requested for release.
A judge hearing petitions for release has an enormous amount of discretion of whether or not to release recordings, how, when, what will be blurred or edited, and other restrictions on release. In addition to any other standard the judge deems relevant, the judge must weigh eight factors in deciding whether to release a portion or all of the requested recordings.
Our experience with these petitions is that those opposing release will rarely tell you in advance the reasons they oppose release as the statute does not require them to do. We are often met with indignant speculation as to why the media are seeking the release of recordings and allegations of sensational and pecuniary motivation. Those opposing release may also argue that the investigation is still ongoing or charges pending. Know that several judges have released the recordings of officer-involved shootings just days after they occurred.
We urge the court to ask those opposing release to articulate why and how timing will affect the orderly administration of justice, an ongoing investigation, or right to a fair trial instead of just offering those buzzwords without tying them to relevant factual considerations. We also make clear that the request is not made to indict or vindicate law enforcement or to indict or vindicate the people hurt or killed in the incident. Rather, the request is made to promote greater transparency so that the public can better understand the difficult nature and complexity of deadly force incidents involving law enforcement while at the same time law enforcement remains accountable for their actions – including the training they did or did not receive prior to an incident.
Interestingly, other than law enforcement whose image or voice appears in the recordings requested, the statute does not give others (or their representatives) standing to be heard at the petition hearing. Some judges will permit them to be heard, while others have not.
If a judge is considering requiring that a recording be edited before release, our experience suggests that it is important to urge the court to requiring blurring of video or muting of audio rather than hard edits, as the public who later view the recordings may attribute the edits to the news media. Sometimes judges are concerned about the presence of children or “innocent bystanders” captured in recordings. In North Carolina, you do not have any reasonable expectation of privacy when you’re in a public place. Nevertheless, we tend to err on the side of encouraging the judge require the faces of children or bystanders be blurred or voices be muted in favor of denying release because they appear in the recordings.
Like you, we certainly wish there was greater and more immediate transparency required surrounding law enforcement deadly force incidents. Until that comes about, we hope you will use all the tools, processes and procedures outlined here to access the public records that can give you and the public a clearer picture of how these incidents unfold. You can reach us 24/7 at email@example.com with any questions.
 (1) The time, date, location, and nature of a violation or apparent violation of the law reported to a public law enforcement agency. (2) The name, sex, age, address, employment, and alleged violation of law of a person arrested, charged, or indicted. (3) The 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. (4) The contents of “911” and other emergency telephone calls received by or on behalf of public law enforcement agencies, except for such contents that reveal the natural voice, name, address, telephone number, or other information that may identify the caller, victim, or witness. In order to protect the identity of the complaining witness, the contents of “911” and other emergency telephone calls may be released pursuant to this section in the form of a written transcript or altered voice reproduction; provided that the original shall be provided under process to be used as evidence in any relevant civil or criminal proceeding. (5) The contents of communications between or among employees of public law enforcement agencies that are broadcast over the public airways. (6) The name, sex, age, and address of a complaining witness. Gen. Stat. § 132-1.4(c)
 (1) Name; (2) Age; (3) Date of original employment or appointment to State service; (4) The terms of any contract by which the employee is employed whether written or oral, past and current, to the extent that the agency has the written contract or a record of the oral contract in its possession; (5) Current position; (6) Title; (7) Current salary; (8) Date and amount of each increase or decrease in salary with that department, agency, institution, commission, or bureau; (9) Date and type of each promotion, demotion, transfer, suspension, separation, or other change in position classification with that department, agency, institution, commission, or bureau; (10) Date and general description of the reasons for each promotion with that department, agency, institution, commission, or bureau; (11) Date and type of each dismissal, suspension, or demotion for disciplinary reasons taken by the department, agency, institution, commission, or bureau. If the disciplinary action was a dismissal, a copy of the written notice of the final decision of the head of the department setting forth the specific acts or omissions that are the basis of the dismissal; and (12) The office or station to which the employee is currently assigned. For the purposes of this section, the term “salary” includes pay, benefits, incentives, bonuses, and deferred and all other forms of compensation paid by the employing entity. See, e.g.,
 (1) Release is necessary to advance a compelling public interest. (2) The recording contains information that is otherwise confidential or exempt from disclosure or release under State or federal law. (3) The person requesting release is seeking to obtain evidence to determine legal issues in a current or potential court proceeding. (4) Release would reveal information regarding a person that is of a highly sensitive personal nature. (5) Release may harm the reputation or jeopardize the safety of a person. (6) Release would create a serious threat to the fair, impartial, and orderly administration of justice. (7) Confidentiality is necessary to protect either an active or inactive internal or criminal investigation or potential internal or criminal investigation. (8) There is good cause shown to release all portions of a recording.