When I request a state agency's draft report or its investigation file under the NC Public Records Act, can the agency refuse to give it to me until the document is finished or the investigation is closed?
Plain-English summary
DEHNR's Office of Public Affairs asked the AG two questions: are agency draft reports public records before they are finalized, and are the staff investigative files prepared in advance of civil litigation public records?
Senior Deputy AG Wanda G. Bryant and Associate AG Daniel D. Addison answered with two qualified yeses.
On draft reports. The NC Supreme Court's 1992 decision in News & Observer Publishing Co. v. Poole, 330 N.C. 465, had ordered disclosure of two draft reports written by a State commission's members for the official who had created the commission. The Court declined to read a "deliberative process" exemption into the Public Records Act, saying that question was for the legislature, not the courts. Because Poole was broad and unspecific about the status of draft documents, the AG could not assure DEHNR that any draft, however incomplete, was exempt. The AG suggested a narrow line: the Poole drafts were "fully written" and "at the stage where they were undergoing review in anticipation of their release." It might be possible to argue that very early drafts (still under construction by the primary author, awaiting substantive additions by co-authors, awaiting review by the signing supervisor) were not yet "records" at all. The AG cited the Florida case Shiven v. Byron, Harless, where field notes of an investigator were held not to be "records" because they were not the final formalization of knowledge.
On investigative files. The Public Records Act contained no general exemption for civil enforcement investigative files. The only specific exemption was N.C. Gen. Stat. § 104E-9(4), allowing DEHNR to withhold radiation-source information when disclosure would be contrary to public policy or public health. Otherwise, the environmental enforcement statutes affirmatively declared investigation records public: under G.S. § 143-215.3(a)(2)(ii), records obtained by the Environmental Management Commission in Article 21, 21A, and 21B investigations "shall be made available to the public," subject only to trade-secret confidentiality. So investigative files in civil enforcement matters were public records.
On timing of disclosure. The statute did not say when DEHNR had to disclose. The AG noted that a literal reading would require disclosure on demand at any time, even during an active investigation. The AG floated a public-policy argument borrowed from Florida (City of Bartow): the statutory "reasonable times" qualifier in G.S. § 132-6 could be read to permit postponing release of investigation materials until the investigation was complete, because earlier release might compromise the investigation. But the AG was explicit: this argument "has neither been raised nor addressed by the North Carolina courts." The AG could not promise that withholding would survive a legal challenge.
Currency note
This opinion was issued in 1994. 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 NC General Assembly has amended Chapter 132 numerous times since 1994, including the addition of exemptions for criminal investigative files, personnel records, and other categories. The investigative-file timing question that the AG flagged as untested in 1994 has been the subject of intervening legislation and case law. Anyone preparing a current public-records request or response should check the current text of Chapter 132 and current NC case law rather than relying on this 1994 analysis.
Background and statutory framework
NC's Public Records Act, codified in Chapter 132, defines "public records" expansively: "all . . . documents . . . regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business" by a state agency. The general inspection-and-copying right runs against everything in that definition unless a specific exemption applies. NC's Act is sometimes called one of the most open public-records regimes in the country precisely because the statutory exemptions are narrow.
News & Observer Publishing Co. v. Poole was a defining 1992 decision. The court ordered disclosure of two draft reports written by members of the Governor's Commission on Higher Education to UNC President C.D. Spangler. The court rejected the argument that ongoing deliberation justified withholding, saying any deliberative-process exemption had to come from the legislature. The decision was widely read as foreclosing a general "deliberative process" or "predecisional" privilege under NC law.
The 1994 AG opinion sat at the edge of Poole. The agency wanted to keep early drafts and investigation files out of the public-records pipeline. The AG had to acknowledge Poole's broad reach while suggesting narrow factual handholds (very early drafts, unwritten field notes, "reasonable times" qualifier) that an agency might invoke. The opinion did not promise those handholds would survive challenge; it identified them as untested arguments.
Common questions
Was the AG saying agencies cannot withhold drafts at all?
Not exactly. The AG said the Poole drafts were already at an advanced stage (fully written, under review, anticipating release) when the Court ordered disclosure. The AG suggested that drafts at a much earlier stage (still being written by the primary author, awaiting substantive additions by co-authors, awaiting first review by the signing supervisor) might fall outside the "record" definition altogether. But the AG could not guarantee that argument would prevail.
What were the three factors the AG identified for "when is a draft a record"?
The opinion listed:
- Whether the main writer of the report has finished writing it.
- If more than one person is writing, whether later authors will make substantive additions or whether they will only review what is basically a finished report.
- If the person who will sign the report is not the writer, whether the signer has had a chance to review the report.
These were meant as factors a court could weigh, not as a statutory test. The closer a draft is to completion, the more likely it is a record.
Did environmental enforcement records get any special protection?
Only narrowly. Radiation-source information under G.S. § 104E-9(4) could be withheld if disclosure would be against public policy or public health. Trade-secret information in Article 21/21A/21B records had to be kept confidential per G.S. § 143-215.3(a)(2)(ii). Otherwise, the statute affirmatively said investigation records "shall be made available to the public."
Could an agency simply wait until an investigation closed before releasing the file?
That was the untested question. A literal reading of the statute did not allow waiting. The AG suggested the "reasonable times" language in G.S. § 132-6 might support delay, citing the Florida City of Bartow case. But NC courts had not adopted that reading. The agency took the risk if it tried.
How should an agency respond to a draft-report request today?
The 1994 opinion's analysis is the historical starting point, but NC public-records law has evolved. Modern practice involves checking whether any current statutory exemption applies (personnel, criminal investigations, attorney-client communications, trade secrets), then producing what is required. The "deliberative process" exception that Poole rejected remains rejected at the NC state level, and Poole is still cited.
Source
- Landing page: https://ncdoj.gov/opinions/public-record-status-of-draft-reports-and-investigative-files/
Citations
- N.C. Gen. Stat. § 132-1
- N.C. Gen. Stat. § 132-6
- N.C. Gen. Stat. § 104E-9(2)
- N.C. Gen. Stat. § 104E-9(4)
- N.C. Gen. Stat. § 143-215.3(a)(2)(ii)
- News & Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992)
- Shiven v. Byron, Harless, Schaffer, Reid & Assoc., 379 So.2d 633 (Fla. 1980)
- City of Bartow v. Public Employees Relations Commission, 341 So.2d 1000 (Fla. App. 1976)
Original opinion text
August 29, 1994
Ms. Deborah Crane, Director
Office of Public Affairs
Department of Environment, Health and Natural Resources
P.O. Box 27687
Raleigh, North Carolina 27611-7687
RE: Public Record status of draft reports and investigative files; N.C. Gen. Stat. §132-1 and §132-6.
Dear Ms. Crane:
This is in response to your request for an opinion about whether certain documents of the Department of Environment, Health and Natural Resources (DEHNR) are public records. Specifically, you have asked whether the following documents are public records subject to disclosure requirements: (1) Draft reports; and (2) Staff investigative files prepared in advance of civil litigation.
Public records include "all . . . documents . . . regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by an agency of North Carolina government or its subdivisions." N.C. Gen. Stat. §132-1. Unless an exemption applies to such records, government agencies must permit them to be inspected and/or copied by anyone upon request. N.C. Gen. Stat. §132-6.
DRAFT REPORTS
DEHNR produces investigative and other reports that are initially scripted by employees but are revised or expanded by other employees before being signed by a supervisor as a final report. You have asked whether such reports must be disclosed as public records before they are complete and final.
The public records law does not specifically address the question of whether preliminary versions of documents are considered public records. The law also does not specify the point at which a document being written becomes a record that is subject to public disclosure.
In News & Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992), the North Carolina Supreme Court required the disclosure to a newspaper of two proposed drafts of a final report of a State government commission. These report drafts, which contained proposed findings of an investigation, were written by commission members and had been presented for review to the government official who created the commission.
The Supreme Court said that it would not exempt such draft reports from disclosure simply because they were still undergoing a deliberative process. The Court said whether such an exception should be made is a question for the legislature. Poole, at 484, 412 S.E.2d at 16.
Since the Court in Poole made a rather broad and unspecific pronouncement about draft reports, we cannot assure you that any initial drafts of reports, no matter how incomplete, are exempt from required public disclosure.
However, the reports that were required to be disclosed in the Poole case were fully written, and the reports were at the stage where they were undergoing review in anticipation of their release. It may be possible to argue in future cases that unfinished report drafts, or other drafts that are not as close to completion as the reports in Poole, might not be at a stage where they are records that must be disclosed.
In a case from Florida, Shiven v. Byron, Harless, Schafffer, Reid & Assoc., 379 So.2d 633 (Fla. 1980), the Florida Supreme Court found that the field notes of an investigator were not subject to disclosure as public records. The Court noted that a dictionary defined "records" as materials that have been prepared with the intent of perpetuating or formalizing knowledge. Basing its decision on this definition, the Court ruled that the notes were not a record because they were not the final evidence of the knowledge to be recorded.
Similar analysis might be applied in North Carolina cases to argue that initial or incomplete drafts of reports might not be at the stage where they are "records" subject to disclosure requirements.
Whether an incomplete report is yet a record might depend upon:
(1) Whether the main writer of the report has even finished writing it yet;
(2) If more than one person is writing the report, whether later authors will make substantive additions or changes, or whether they will only review what is basically a finished report before it is released;
(3) If the person who will sign the report is not the one writing it, whether the signer has had a chance to review the report yet.
Obviously, the closer a report is to completion, the more likely it would be considered to be a public record.
INVESTIGATION FILES
The public records law contains no disclosure exemption for documents in government agency staff investigation files prepared as part of enforcement efforts, but in advance of civil litigation.
The statutes authorizing investigations by DEHNR staff contain only one provision specifically permitting the department to withhold investigative records from the public. The North Carolina Radiation Protection Act authorizes the department to conduct investigations relating to the sources, control and effects of radiation. N.C. Gen. Stat. §104E-9(2). The department may refuse to make public dissemination of information relating to a source of radiation in the State if disclosure would contravene public policy or would be against the health, safety and welfare of the public. N.C. Gen. Stat. §104E-9(4).
The documentary information obtained or compiled by DEHNR staff in the bulk of their other civil environmental law enforcement investigations is specified by statute as public records. Records, reports or information obtained by the Environmental Management Commission in investigations under Article 21 (Water and Air Resources), Article 21A (Oil Pollution and Hazardous Substances Control), and Article 21B (Air Pollution Control) of Chapter 143 of the General Statutes "shall be made available to the public." N.C. Gen. Stat. §143-215.3(a)(2)(ii). The only exception is that the commission must keep certain trade secret information confidential. Id.
Based on the above it is our opinion that, except for the disclosure exemptions noted, investigative files in civil enforcement proceedings are public records subject to the disclosure requirements of the public records law.
However, there remains a question as to when DEHNR might have to disclose such materials. Although the statute states that such investigatory materials are public, the statute does not state when DEHNR must make the materials public. There is nothing in either the public records statute or DEHNR's statutes that specifically permits DEHNR to withhold disclosure of investigatory materials until investigations are complete. A literal interpretation of the public record law would require that investigatory materials be disclosed, upon demand, at any time after they are received, regardless of whether the investigation is complete. Thus, we cannot advise you that withholding requested investigatory records until completion of investigations would be protected from legal challenge.
However, it may be possible to argue as a matter of public policy that investigatory materials need not be released until the investigation is completed.
In City of Bartow v. Public Employees Relations Commission, 341 So.2d 1000 (FLA. App. 1976), the Florida Court of Appeals found that disclosure of investigatory materials may be delayed until completion of the investigation. The court based it's decision on language from Florida's public records law stating that the public should have access to public records "at reasonable times [and] under reasonable conditions." The court felt that requiring the release of investigatory materials prior to the completion of investigations might compromise investigations. The court held that the statutory language requiring access to public records at "reasonable times" permitted postponing the release of investigatory materials until the investigation was completed.
North Carolina's public records law, like Florida's law, says that public records must be disclosed at reasonable times. N.C. Gen. Stat. §132-6. It can be argued in future cases that release of investigatory materials is only reasonable after investigations are complete. We caution that this argument has neither been raised nor addressed by the North Carolina courts.
We hope that this fully answers your request. Should you have further questions regarding this issue, please do not hesitate to contact us.
Wanda G. Bryant
Senior Deputy Attorney General
Daniel D. Addison
Associate Attorney General