Important N.C. Public Records Question Left Unanswered

March 12, 2013

The North Carolina Supreme Court last week split 3-3 on an appeal presenting important questions concerning the state’s Public Records Act, apparently leaving it for the General Assembly to close a gap in the law concerning the applicability of the records statute to campus police departments.

The case, Ochsner v. Elon University and North Carolina Attorney General Roy Cooper, presented, among other things, the question whether the campus police department of a private university is subject to the Public Records Act, where that department was certified and authorized pursuant to state law.

The Court of Appeals answered that question in the negative, affirming the trial court’s dismissal of a complaint brought by a reporter from Elon University’s campus television news program seeking access to a complete copy of an incident report generated by the campus police when it arrested a student in March 2010.  The campus police had refused to give the reporter the full incident report, instead turning over an arrest report and the first page of the incident report.

The Public Records Act, however, specifically makes public certain information concerning police investigations, including:

(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.

            It so happens that this was exactly what the reporter requested from the campus police, a request the department refused.

In affirming the trial court’s dismissal, the Court of Appeals had held that even though state law gives police departments operated by private universities the power to arrest, the Public Records Act does not cover those departments.  The North Carolina Supreme Court agreed to hear the case, but split evenly, 3-3.  Justice Barbara Jackson had recused herself because the reporter, Nick Ochsner, had worked on her re-election campaign.  The split leaves the Court of Appeals’ decision intact but without any precedential value for future courts.

The gap in the law identified by this case appears to be the result of changes in the law surrounding the certification of campus police departments that were not carried through to the Public Records Act.  More specifically, when the statute certifying campus police departments changed in 2005, the new statutory cite was not added to the list of what constitutes a “public law enforcement agency” under the Public Records Act.

With the Supreme Court deadlocked on this issue, a legislative fix has been proposed in the General Assembly.  House Bill 142 would amend the law authorizing campus police departments to expressly make public the same information concerning police investigations that is public under the Public Records Act.

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