Can a member of the public ask the North Carolina Board for Licensing of Geologists to hand over an applicant's test score?

Plain-English summary

The Director of the Division of Land Resources asked the AG whether the Board for Licensing of Geologists had to disclose applicant test scores and applications when someone made a public records request. Assistant Attorney General Kathryn Jones Cooper answered no.

The pieces of the answer fit together with statutory construction tools rather than constitutional analysis. The Public Records Act in N.C.G.S. § 132-1 defines public records to include essentially any record made or received by a state agency. § 132-6 gives the public the right to inspect and copy public records. By default, anything in a state board's files is public.

The Geologists Licensing Act in N.C.G.S. § 89E-14 takes a graded approach. Subsection (a) confirms that the Board's proceedings and the register kept by the Board are public records subject to public inspection. Subsection (b) details what has to be in the register: applicants' names, ages, residences, application dates, places of business, qualifications, whether examination was required, license status, and dates of Board action. Subsection (c) goes the other way: individual test scores and applications and the materials related to them (including letters of reference) are confidential and not subject to disclosure except as required by law or Board rule.

The Public Records Act predates the Geologists Licensing Act by almost half a century. The AG marshaled a stack of statutory construction canons to handle the conflict. Statutes on the same subject must be read in pari materia and harmonized when possible. State v. Benton's canon presumes that the legislature acts with full knowledge of existing law, so the 1983 enactment of § 89E-14(c) was made knowing the Public Records Act was already on the books. State v. Hutson and the related canon hold that when the harmonization will not work, the later enactment controls or is treated as an exception to the prior statute. Hobbs v. County of Moore and the related cases hold that a statute should not be read so as to make any portion meaningless.

Applied to § 89E-14: subsection (a) keeps the proceedings and register inside the Public Records Act. Subsection (c) carves out individual test scores and applications. The carve-out is meaningful only if it actually excludes those records from public inspection. Reading § 132-6 to override § 89E-14(c) would make the later confidentiality provision meaningless, which would violate the canon against absurd or self-defeating constructions.

The remaining valve is § 132-9, which allows a person denied access to seek a court order compelling disclosure. The opinion noted that path was available. Routine over-the-counter public records requests could not pry the test scores or applications out of the Board, but a court could order disclosure in a particular case after weighing the specific equities.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Public Records Act and Chapter 89E have both been amended since 1991. The general principle that profession-specific confidentiality provisions act as exceptions to the public records law remains intact, but specific records categories and Board rules should be checked against current statute.

Background and statutory framework

The Geologists Licensing Act was enacted in 1983 as part of a broader wave of professional licensure statutes designed to protect public safety from underqualified practitioners in technical fields. The mechanics of the Act follow a pattern common to most occupational licensing statutes: a Board adopts rules, conducts examinations, maintains a register of licensees, and disciplines licensees who violate the standards of the profession.

The confidentiality of test scores and applications serves several purposes. First, it protects the integrity of the examination process itself: if applicants could see prior examinations and reference letters of past test-takers, the examination becomes harder to make secure. Second, it protects the privacy of applicants who may have failed an examination or had unfavorable references. Third, it protects the candor of references: a reference writer who knows the applicant will read the letter is less likely to give a frank assessment.

The opinion's structural distinction (proceedings and register public, individual test scores and application materials confidential) tracks the public's actual interest. Members of the public have a legitimate interest in knowing who is licensed, when they were licensed, and what the Board did. They do not generally have a legitimate interest in seeing how an individual applicant performed on the test or what their reference letters said. The statute's allocation of public-versus-private records matches that intuition.

The § 132-9 court order route is the safety valve. Cases where someone has a specific need (an applicant challenging her own scoring, a litigant in a malpractice case where a licensee's qualifications are at issue, a journalist investigating allegations of board misconduct) can still get to the records through the judicial process. The court weighs the public interest against the privacy interest and orders disclosure where appropriate. That balance is exactly what § 132-9 was designed to perform.

The opinion's reasoning has been applied to many other licensing boards with parallel confidentiality provisions. Most professional licensing statutes in North Carolina include language similar to § 89E-14(c), and the structural analysis the AG used in this opinion is the standard analytical framework for those cases.

Common questions

Could the applicant herself see her own test scores and application?

The opinion did not directly address this. § 89E-14(c) treats the records as confidential, but the statute and Board rules typically allow applicants to access their own records. The confidentiality protection is generally for the benefit of the applicant against third-party access, not against the applicant's own access.

What about a lawsuit involving the licensee's qualifications? Could the records be subpoenaed?

Yes, with the right court process. § 132-9 expressly contemplates court orders compelling disclosure. A litigant in a related civil action could move for an order requiring the Board to produce records relevant to a specific licensee's qualifications.

Did the AG's reasoning apply to other licensing boards?

Yes. Most North Carolina licensing boards have parallel confidentiality provisions for test scores and individual application materials. The same statutory construction analysis applies to each.

What was the rationale for keeping reference letters confidential?

Reference letters work as a candor mechanism. A reference writer who knows the applicant will see the letter is less likely to be frank about weaknesses. Keeping the letters confidential preserves the value of the reference process for the Board.

Could the Board release the test scores in aggregate form (passing percentages, score distributions)?

Aggregate or de-identified data was typically allowed and not covered by the individual-records confidentiality of § 89E-14(c). The Board could publish statistics about its examination without disclosing any individual's score.

Citations

• N.C.G.S. § 89E-14 (Board records and confidentiality)
• N.C.G.S. § 132-1, 132-6, 132-9 (Public Records Act)
• State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970)
• Shaw v. Baxley, 270 N.C. 740, 155 S.E.2d 256 (1967)
• Jackson v. Guilford County Board of Adjustment, 275 N.C. 155, 166 S.E.2d 78 (1969)
• State ex rel Commissioner of Ins. v. NC Auto. Rate Adm. Office, 287 N.C. 192, 214 S.E.2d 98 (1975)
• State v. Hutson, 10 N.C. App. 653, 179 S.E.2d 858 (1971)
• Hobbs v. County of Moore, 267 N.C. 665, 149 S.E.2d 1 (1966)
• State v. Dorsett, 3 N.C. App. 331, 164 S.E.2d 607 (1968)
• In Re Hardy, 294 N.C. 90, 240 S.E.2d 367 (1978)
• State v. Hart, 287 N.C. 76, 213 S.E.2d 291 (1975)
• Commissioner of Ins. v. NC Auto. Rate Adm. Office, 294 N.C. 60, 239 S.E.2d 48 (1978)

Source

• Landing page: https://ncdoj.gov/opinions/test-scores-and-applications-for-licensure-and-related-materials/

Original opinion text

Subject: Public Records; Test Scores and Applications for Licensure and Related Materials Received by the North Carolina Board for Licensing of Geologists

Requested By: Charles H. Gardner, Director, Division of Land Resources, Department of Environment, Health, and Natural Resources

Question: Are test scores and applications for licensure and related materials received by the North Carolina Board for Licensing of Geologists subject to public inspection and examination under G.S. 132-6?

Conclusion: No.

Test scores and applications for licensure and related materials received by the North Carolina Board for Licensing of Geologists (Board) are public records as defined by G.S. 132-1. Pursuant to G.S. 89E-14(c), the Board is required to treat these records as confidential and not subject to disclosure except to the extent required by law or by rule or regulation of the Board. The issue to be addressed by this opinion is whether the Board is required by G.S. 132-6 to make these records available for public inspection and examination.

It is always presumed that the legislature acted with care and deliberation and with full knowledge of prior and existing law. State v. Benton, 276 NC 641, 174 SE2d 793 (1970). The public records law existed prior to the enactment of the Geologists Licensing Act; therefore, it can be presumed that the legislature was aware of the public records law when it provided for the confidentiality of test scores and applications and related matters in G.S. 89E-14(c).

Statutes dealing with the same subject matter must be construed in pari materia, and harmonized, if possible, to give effect to each. Shaw v. Baxley, 270 NC 740, 155 SE2d 256 (1967); Jackson v. Guilford County Board of Adjustment, 275 NC 155, 166 SE2d 78 (1969). Any irreconcilable ambiguity should be resolved so as to effectuate the true legislative intent. State ex rel Commissioner of Ins. v. North Carolina Auto. Rate Administrative Office, 287 NC 192, 214 SE2d 98 (1975). Moreover, the latest enactment will control or will be regarded as an exception to or a qualification of the prior statute. State v. Hutson, 10 NC App 653, 179 SE2d 858 (1971). Under G.S. 89E-14(a) the records of the Board's proceedings and the register kept by the Board are public records subject to public inspection and examination pursuant to G.S. 132-6. Under G.S. 89E-14(b), the register has to show: the name, the age and the residency of each applicant; the date of application; the place of business of such applicant; his or her education and other qualifications; whether or not an examination was required; whether the applicant was licensed; whether a license was granted; the dates of the action by the Board; and such other information deemed necessary by the Board. However, G.S. 89E-14(c) specifically provides that individual test scores and applications and material relating thereto, including letters of reference relating to an application, are to be treated as confidential and not subject to disclosure by the Board. Since the public records law was adopted in 1935, and the Geologists Licensing Act was adopted in 1983 (Reg. Sess. 1984), the latter statute controls, and the confidentiality provision in G.S. 89E-14(c) should be deemed an exception to the public records law. The Board would have to disclose the records kept confidential under G.S. 89E-14(c) if a court enters an order pursuant to G.S. 132-9 compelling disclosure of the records.

A statute is presumed to have meaning and will be upheld if its meaning is ascertainable with reasonable certainty by proper construction. Hobbs v. County of Moore, 267 NC 665, 149 SE2d 1 (1966); State v. Dorsett, 3 NC App 331, 164 SE2d 607 (1968). A construction of a statute which operates to defeat or impair the object of the statute must be avoided if that can reasonably be done without violence to the legislative language. In Re Hardy, 294 NC 90, 240 SE2d 367 (1978); State v. Hart, 287 NC 76, 213 SE2d 291 (1975). In construing statutes, courts normally adopt an interpretation which will avoid absurd or bizarre consequences, the presumption being that the legislature acted in accordance with reason and common sense and did not intend untoward results. Commissioner of Ins. v. North Carolina Auto. Rate Administrative Office, 294 NC 60, 239 SE2d 48 (1978). The confidentiality provision in G.S. 89E-14(c) would be meaningless if the test scores and the application and related materials were subject to public inspection and examination pursuant G.S. 132-6.

Therefore, it is the opinion of this Office that the test scores and application and related materials received by the North Carolina Board for Licensing Geologists are not subject to public inspection and examination under G.S. 132-6.

LACY H. THORNBURG, Attorney General
Kathryn Jones Cooper, Assistant Attorney General