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Records defined as 'public' cannot be withheld as criminal intelligence

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    News Media Update         NORTH CAROLINA         Freedom of Information    

Records defined as ‘public’ cannot be withheld as criminal intelligence

  • The Court of Appeals of North Carolina ruled that an exemption to the state Public Records Act for criminal intelligence information does not permit the withholding of records specifically required to be public.

May 14, 2004 — Law enforcement records required to be public under North Carolina’s Public Records Act may not be withheld under an exemption for criminal intelligence information, the state Court of Appeals ruled last week. However, records that are covered by the exemption may continue to be withheld even after an investigation concludes, the court said.

The Ashville Citizen-Times and WLOS-TV requested records from the State Bureau of Investigation relating to a May 2002 fire at the Mitchell County Jail in Bakersville. Eight inmates locked in their cells died in the fire, which was caused by cardboard boxes stacked near a heater that malfunctioned, according to a bureau investigation. The bureau publicly announced the finding, but the report was not made public.

Family members of the victims have sued the jail claiming officials failed to properly conduct a safety inspection of the facility.

The bureau denied media requests for the report, citing an exemption to the Public Records Act for criminal intelligence and investigation records. The media sued for the information in Superior Court in Asheville in February 2003, arguing that because the investigation into the fire was complete and no further action was to be taken, reasons for withholding the records no longer applied.

The court dismissed the suit, and the media groups appealed.

On May 4, the appeals court unanimously ruled that the exemption for criminal intelligence information does not expire when an investigation is complete. Judge James A. Wynn Jr. held that because the exemption is unambiguous, the courts may not adopt a “balancing approach” that would allow review on a case-by-case basis.

However, the court also ruled that the exemption could not be construed to apply to records that are defined as public by the act. “The burden is on the SBI to comply with plaintiffs’ request by reviewing its records and releasing all information relating to the Mitchell County fire defined as public records,” Wynn wrote.

The investigation report itself may be withheld, but the bureau must disclose information detailing: the time, date, location and nature of alleged violations; names and identifying information of suspects and complaining witnesses; circumstances surrounding an arrest; broadcasts between law enforcement personnel; 911 and other emergency calls (except for information identifying callers, victims and witnesses); and warrants, indictments, summons and other court records unless sealed by the court.

The Citizen-Times said in a May 7 editorial that the state legislature should amend the Public Records Act to allow investigation records to be disclosed when they would no longer compromise prosecutions.

“We have a right and an obligation to hold our elected officials fully accountable for what happened, and for making certain necessary changes are made to ensure that it never happens here again,” the paper wrote. “We are stymied in that effort if we don’t have enough information to advocate effectively.”

(Gannett Pacific Corp. v. North Carolina State Bureau of Investigation; Media Counsel: James Gary Rowe, Kelly & Rowe, Asheville, N.C.) GP

© 2004 The Reporters Committee for Freedom of the Press

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