If I file a complaint about a North Carolina police officer, can the city's Internal Affairs Division (IAD) tell me the outcome? And can the press get a copy of the IAD letter?
Plain-English summary
A Durham municipal attorney asked the AG how to handle two routine letters from a police department's Internal Affairs Division (IAD). When a citizen files a complaint about an officer, IAD sends two letters: one acknowledging receipt of the complaint, and a later one reporting whether the charges were sustained, not sustained, unfounded, or whether the officer was exonerated. The final letter does not say whether discipline was imposed. The city wanted to know whether copies of these letters in IAD's files were public records.
The AG's answer: no, the letters are personnel records under N.C.G.S. § 160A-168. They contain information directly relating to an employee's performance and indirectly relating to possible discipline. The general public has no right to inspect them.
The city can still release the letters to the complainant, but only by going through one of the personnel-file exceptions in § 160A-168(c):
- Employee consent. The officer who is the subject of the complaint signs a written release under § 160A-168(c)(6). With consent, the letters can go to the complainant.
- City-manager determination. The city manager, with the council's concurrence, makes a written determination under § 160A-168(c)(7) that release is "essential to maintaining public confidence in the administration of city services or to maintaining the level and quality of city services." The written determination must be retained in the city manager's or clerk's office, must be available for public inspection, and must become part of the employee's personnel file. After that, the council may inform the complainant (and others deemed essential) about personnel actions and the reasons for them.
Importantly, the AG concluded that sending the originals to the complainant does not waive the confidentiality of IAD's own file copies. The press cannot use the fact that the complainant got a copy as a hook for a public-records request against the police department. The AG distinguished News and Observer Publishing Co. v. Poole (N.C. 1992): that case held only that one government agency that received confidential records from another agency could not invoke the originating agency's confidentiality claim; it did not hold that the originating agency waives confidentiality by sharing the record.
The AG also noted that the private complainant, once in possession of the letters, is free to disclose them. Neither § 160A-168 nor the Public Records Law applies to private individuals.
Currency note
This opinion was issued in 1995. 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. North Carolina's municipal personnel-file statute (§ 160A-168) and its county counterpart (§ 153A-98) have been amended several times since 1995, and the public-confidence determination procedure has been refined. The Brennan Center, ACLU, and police-accountability advocacy literature have pushed for broader transparency rules in many states; some North Carolina cities have adopted civilian-oversight boards with their own access rules. Counsel should verify current statute and any local ordinance before relying on this opinion.
Historical context: what the AG concluded
The AG worked through three connected questions:
Are IAD letters to complainants personnel records? Yes. Section 160A-168(a) defines personnel files broadly: "any information in any form gathered by the city with respect to that employee," including "information relating to an employee's application, selection or nonselection, performance, promotions, demotions, transfers, suspension and other disciplinary actions, evaluation forms, leave, salary, and termination of employment." The letters describe the officer's performance with respect to a complaint and indirectly indicate whether discipline was warranted. That falls inside the statutory definition.
Can IAD release the letters to the complainant? Only via one of the § 160A-168(c) exceptions. The two practical paths are subsection (6) (employee consent) and subsection (7) (city-manager determination of public-confidence need). The AG explained the (c)(7) procedure in detail: a written determination, retained in a public-records-accessible location, that becomes part of the officer's personnel file. With that, the council may inform the complainant (or anyone else "deemed essential to receive the information") about the personnel action and its reasons.
Does sending the letters to the complainant waive the city's confidentiality? No. The AG read News and Observer v. Poole narrowly. In Poole, one agency had given confidential records to a second agency; the court held the second agency could not invoke the first agency's claim to confidentiality. That holding did not affect the confidentiality of the records in the hands of the first agency. So the police department's copies remain confidential even after the originals are sent to the complainant.
The AG also clarified the asymmetry: § 160A-168 binds the city, not private individuals. A complainant who receives the letters can do whatever they want with them, including disclose them to the press. But the department cannot disclose its own file copies.
Common questions
If I file a complaint about a North Carolina police officer, can the police tell me what happened?
Yes, but only if the city goes through the § 160A-168(c) procedure: either the officer consents to release, or the city manager (with council concurrence) signs a written public-confidence determination. Without one of those, the department cannot tell you.
What does the final IAD letter typically say?
Under the practice the city attorney described to the AG, the final letter reports whether the charges were sustained, not sustained, unfounded, or whether the officer was exonerated. It does not state whether discipline was imposed. The discipline itself remains in the personnel file.
Can the press file a public-records request for the IAD letters?
Not under this opinion. The letters are personnel records and are confidential under § 160A-168. The Public Records Law (§ 132-6) does not override the personnel-file exception. A subsequent court decision could change this; counsel should check current law.
Does the city waive confidentiality if it sends me copies of the letters?
No, according to this opinion. The AG distinguished News and Observer v. Poole and concluded the police department's own file copies remain confidential even after the originals are sent to the complainant.
Can I publish or share the letters I received?
Yes, in this opinion's framework. Section 160A-168 and the Public Records Law apply to the city, not to private individuals. Once you have the letters, you can do whatever you want with them.
What is the public-confidence determination procedure for releasing personnel info?
Under § 160A-168(c)(7), the city manager must determine in writing that release "is essential to maintaining public confidence in the administration of city services or to maintaining the level and quality of city services." The council must concur. The written determination must be retained in the city manager's or clerk's office, must be available for public inspection, and must be added to the employee's personnel file. After that, the council may inform the complainant (and others "deemed essential to receive the information") about personnel actions and the reasons for them.
Background and statutory framework
N.C.G.S. § 160A-168 (Municipal personnel files). Personnel files of municipal employees are not subject to general public inspection. Subsection (a) defines what counts as a personnel file. Subsection (c) lists the exceptions under which information may be released. The two most relevant here are (c)(6) (employee-signed release) and (c)(7) (city-manager-and-council written determination of public-confidence need).
N.C.G.S. § 132-6 (Public Records Law). General requirement of public inspection of government records, subject to statutory exceptions like § 160A-168.
News and Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992). North Carolina Supreme Court decision the AG distinguishes. Poole did not hold that an agency waives confidentiality by sharing a confidential record; it held only that the receiving agency cannot invoke the originating agency's confidentiality claim.
The opinion is signed by Daniel D. Addison (Associate Attorney General) and is written under the direction of Wanda G. Bryant (Senior Deputy Attorney General).
Citations
- N.C.G.S. §§ 132-6, 160A-168(a), (c), (c)(6), (c)(7).
- News and Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992).
Source
- Landing page: https://ncdoj.gov/opinions/confidentiality-of-letters-from-internal-affairs-department/
Original opinion text
May 22, 1995
Mr. Keith D. Burns
Faison & Fletcher
P.O. Box 51729
Durham, North Carolina 27717-1729
Re: Advisory Opinion; Confidentiality of letters from internal affairs department of municipal police department to private individual concerning investigation of a complaint against a police officer; G.S. § 132-6 and § 160A-168.
Dear Mr. Burns:
This is in response to your request, on behalf of a North Carolina municipality you represent, for an advisory opinion from the Attorney General's Office. You requested our opinion on the public record status of correspondence from the municipal police department's Internal Affairs Division ("IAD") to a citizen who has registered a complaint about a police officer.
You indicated that when a citizen registers a complaint about a police officer, IAD writes a letter to the citizen informing him that the complaint has been received and will be investigated. After the investigation is conducted, IAD writes another letter to the complainant summarizing the outcome of the investigation. This final letter informs the complainant if the charges were sustained or not sustained, whether the officer was exonerated, and whether the charges were unfounded. The final letter does not indicate whether any disciplinary action was taken against the officer.
You asked whether these initial and final letters to complainants, copies of which are retained in IAD's files, are confidential personnel file documents pursuant to G.S. § 160A-168, or whether they are subject to public disclosure pursuant to the Public Records Law, G.S. § 132-6.
Personnel files of municipal employees are not subject to general public inspection, notwithstanding the Public Records Law requirement that the public be permitted to inspect government records. G.S. § 160A-168(a). An employee's personnel file consists of any information in any form gathered by the city with respect to that employee. Personnel files include, but are not limited to, information relating to an employee's application, selection or nonselection, performance, promotions, demotions, transfers, suspension and other disciplinary actions, evaluation forms, leave, salary, and termination of employment. G.S. § 160A-168(a).
You indicated that the purpose of an IAD investigation is to evaluate an officer's performance with respect to a complaint and to determine whether disciplinary action against the officer is warranted. The letters to IAD complainants contain information directly relating an employee's performance, and indirectly relating to possible disciplinary action. Thus, these letters fall within the definition of personnel files in G.S. § 160A-168, and the department may not disclose them to the general public.
A question arises as to whether IAD may release this information to the complainant, since the information is not subject to public disclosure. We conclude that since these letters contain confidential personnel information, the department would need to avail itself of one of the exceptions in G.S. 160A-168(c) in order to release this information to the complainant. This might be accomplished by having the employee who is the subject of the complaint and investigation sign a release authorizing the disclosure of the information to the complainant. G.S. 160A-168(c)(6).
Alternatively, this information might be released to the complainant if the city manager and council invoke the provisions of G.S. 160A-168(c)(7). In accordance with that subsection, the city manager, with concurrence of the council, must determine in writing that release of the information to the complainant is essential to maintaining public confidence in the administration of city services or to maintaining the level and quality of city services. This written determination must be retained in the office of the city manager or city clerk, it must be made available for public inspection, and it must become part of the employee's personnel file. If this procedure is invoked and followed, the council may then inform the complainant (or any other person deemed essential to receive the information) about personnel actions taken against an employee and the reasons for those actions.
It is our opinion that if the city invokes and follows this latter procedure, the two IAD letters described above may be sent to the complainant while still maintaining the confidentiality of copies of those letters that are retained in IAD's files. Only the city manager's written determination concerning the need for the release becomes a public record. The personnel information that is released to the complainant in the letters remains confidential.
You asked whether, in light of News and Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992), the police department waives the confidentiality of IAD complaint response letters by sending the originals to the complainant.
The Poole case does not stand for the proposition that government agencies waive the confidentiality of their own files if they disclose confidential documents to others. In Poole, one government agency turned confidential records over to a second government agency. The plaintiffs successfully sued for access to those records in the hands of the second agency. The Court ruled that there was no statutory provision which permitted the second agency to share the first agency's claim to confidentiality. However, the court's decision did not affect the confidentiality of the records in the hands of the first agency.
In your scenario, the police department does not waive the confidentiality of its own personnel records merely because it has disclosed information from those files to a private individual in compliance with the provisions of G.S. 160A-168(c). First of all, by sending a letter to the complainant the police department does not disclose the information to another government agency. Second, the confidentiality of the copies of the letters in the hands of the police department is not affected by the fact that someone else has the original.
Of course, a private individual who receives letters from IAD concerning his complaint is free to disclose or not to disclose those letters publicly. Neither G.S. § 160A-168 nor the Public Records Law applies to private individuals. However, the police department's copies of those letters are still personnel records in the hands of the police department, and the department is prohibited from publicly disclosing its copies of those letters.
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