We frequently get calls to the hotline when law enforcement officials redact the names of witnesses, perpetrators, juveniles or victims in crime and incident reports. Journalists want to know – can police do that? When it comes to police reports, what information does law enforcement have to disclose and what can they keep confidential? The answers aren’t always black and white, so here is a quick primer on police reports and investigative files.
“Criminal records” are not “public records”
The first thing to remember is that in North Carolina, police reports are not automatically public records. “Criminal records” are governed by N.C. Gen. Stat. § 132-1.4, which says that our usual public records law (N.C. Gen. Stat. § 132-1 et. seq.) does not apply to records related to the “prevention or solving of crimes.” Since police reports fall into this category, full and unlimited access is usually not available. However, the public does have a right of access to the information that is listed in N.C. Gen. Stat. § 132-1.4(c) as follows:
The name of the suspect
This one is easy – unless the suspect is a juvenile. Subsection (2) above makes public the name, sex, age, address, employment, and alleged violation of law of an adult person arrested, charged, or indicted. Assuming the suspect is over 18, there is no mechanism for withholding this information, even temporarily. However, if the individual is under 18, N.C. Gen. Stat. § 7B-3100 makes information regarding juveniles “under investigation” confidential indefinitely. (There is an exception that allows the victim of a juvenile perpetrator to have access to certain information and proceedings. See § 7B-2052.)
The name of a witness
Our statute makes clear that the name, sex, age, and address of a complaining witness are public. However, the very next section says that law enforcement officials “shall temporarily withhold” the name and address only “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.” (Notice that the sex and age of a complaining witness cannot be withheld under any circumstance.)
What does it mean to “temporarily withhold?” Withholding is acceptable only as long as that threat exists. If you suspect that the threat is over and the agency is overreaching by refusing to release these details, the law allows you to ask the court for an order compelling the disclosure. These types of proceedings must be given priority and heard quickly.
The name of a witness cannot be withheld simply because that person is a juvenile; only the identity of a juvenile “under investigation” is protected by § 7B-3100.
The name of the victim
If the victim is also a complaining witness, law enforcement must follow the guidelines above. But what happens when the victim is deceased? Assuming the deceased person was not a complaining witness before his or her death, the decedent’s identity would need to fall within one of the other subsection (c) categories in order to be public. In these situations, we argue that the victim’s identity is part of (c)(1), and that a complete response to the “time, date, location, and nature of a violation or apparent violation of the law reported to a public law enforcement agency” necessarily includes identity of the victim, since there is no explicit prohibition on releasing the victim’s name.
Note that there is no provision in our statute that allows a law enforcement agency to withhold the name of a deceased victim pending the notification of family members. Generally, there is also no law that allows law enforcement to withhold the name of a deceased juvenile victim of either a crime or an accident.
The exception to this is in child fatality or near fatality cases where the victim has been subjected to abuse and neglect. In those cases, N.C. Gen. Stat. § 7B-2902 controls and the rules are different and more complicated. If you are reporting on a crime that falls into this category, consult the statute and contact the hotline if you have questions.
The rest of the investigation file
Even though law enforcement investigation records are not public automatically, they can be made public “by order of a court of competent jurisdiction.” This will involve filing an action, and there are no specific rules for the procedure. Whether or not the file should be released in whole or in part will be up to the sole discretion of the presiding judge. Relevant factors may include the nature and current status of the case, whether there is an ongoing investigation, and the potential ramifications for making the investigative file public.
In some instances, such as when no charges are contemplated and the matter is closed, law enforcement may be willing to release files without a court order. It’s always worth asking first about the potential for voluntary release. If a court order must be obtained, there is no mechanism for the recovery of attorney fees when seeking an investigative file. If what you’re looking for is a law enforcement recording, however, you will be required to seek a court order.
If you are interested in accessing an investigation file, we at Stevens Martin Vaughn & Tadych, PLLC have experience with these proceedings and can help you navigate your options. You can contact us at 919-582-2300, and NCPA members are always welcome to email us at hotline@ncpress.com. You can also come visit us at our brand new office, located at 2225 W. Millbrook Road, Raleigh, NC 27612.