Building on the prior week's opinion, can the NC House Ethics Committee split its proceedings (closed session just for a minor witness's testimony, open session for the rest), and can it consider investigatory reports in closed session?

Plain-English summary

Representative Julia C. Howard, Chair of the House Ethics Committee, returned to the AG on September 22, 1995 with two follow-up questions to the AG's September 20, 1995 opinion. Chief Deputy AG Andrew A. Vanore, Jr. and Chief Counsel John R. McArthur answered on September 25.

Question 1: Could the Committee proceed in closed session under § 143-318.11(a)(6) just to take the testimony of a former House page (a minor who would only testify behind closed doors), and proceed in open session for the rest of the investigation and deliberations? Answer: Yes, assuming the Committee can go into closed session under that subsection at all (the question the prior opinion flagged as unresolved because of the internal tension in the 1994 amendments). A body that has the authority to close a meeting can exercise that authority for a portion of its proceedings and conduct the rest in open meeting. If the Committee chose closed session for the minor page's testimony, the AG concluded the transcript of that testimony would be part of the closed-session minutes. Under § 143-318.10(e), the transcript may be held from public inspection only for so long as public inspection would frustrate the purpose of the closed session, which means no later than the conclusion of the Committee's proceedings.

Question 2: Could the Committee consider and discuss investigatory reports in closed session under § 143-318.11(a)(6)? Answer: Yes, again assuming the Committee can close meetings at all. The Committee may use closed session to consider and discuss those reports. The reports themselves are public records under the September 20 opinion, but timing of public inspection is a separate question.

The AG then noted a subtle wrinkle on the second question. If the Committee made the reports part of the closed-session minutes, an argument exists that under § 143-318.10(e) the reports could be held from public inspection until the conclusion of the Committee's proceedings. Whether that argument works depends on whether the reports can lawfully be made part of the closed-session minutes. A transcript taken inside the closed session naturally belongs to the minutes of that session. Investigatory reports, by contrast, contain information from outside the closed session (witness interviews and other materials assembled by the investigator before any closed session occurred). The argument that investigatory reports can be treated like closed-session minutes is plausible but distinguishable. The AG said the Committee has a "responsible basis" for delaying public inspection of the reports until the conclusion of the proceedings but could not predict with confidence how a court would rule on a lawsuit seeking pre-conclusion inspection.

The takeaway for the Committee: the partial-closed-session approach is workable. The Committee can do the parts that need closed treatment behind closed doors and let everything else proceed in open meeting. The records that get generated still go public at conclusion. The Committee's ability to delay public inspection of the investigatory reports during the proceedings depends on a not-yet-tested theory of treating them as part of closed-session minutes.

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.

NC's Open Meetings Law and Public Records Act have been amended several times since 1995. The internal inconsistency in § 143-318.11(a)(6) that the AG flagged in the September 20 opinion has been the subject of later legislative attention, and the closed-session/transcript framework has refined. Anyone facing a comparable question now should consult current Chapters 132 and 143, current legislative ethics committee procedures, and counsel familiar with NC open-meetings practice.

Common questions

Q: What does "split session" mean in practice?
A: The Committee opens its meeting in open session, conducts most business publicly, then formally moves and votes to go into closed session for a specific limited purpose (here, taking testimony of a minor page), conducts that testimony, then formally moves and votes to return to open session and continue. Each entry into and exit from closed session must be noted in the open-session minutes; the closed-session minutes capture what happened while closed.

Q: How long can the closed-session transcript stay private?
A: Until public inspection would no longer frustrate the purpose of the closed session, which is no later than the conclusion of the Committee's proceedings. At the latest moment, the transcript becomes a public record. The Committee cannot indefinitely withhold it.

Q: Why is the investigatory report treatment different from the transcript treatment?
A: A closed-session transcript captures what happened inside the closed session. It is naturally part of those minutes. An investigatory report comes from outside the closed session: an investigator interviews witnesses, gathers documents, drafts a report, and delivers it to the Committee, often before any closed session takes place. Treating an externally-prepared report as if it were part of the minutes of a closed session in which it was discussed is a defensible legal theory but not an obviously correct one. The AG saw the argument but could not predict whether a court would accept it.

Q: What is a "responsible basis" for delayed inspection?
A: It means an argument that is non-frivolous and defensible, even if its ultimate success is uncertain. The AG was telling the Committee that delaying inspection of investigatory reports during proceedings is a defensible position to take, but that a member of the public who sued for pre-conclusion access might or might not win. The Committee has cover to try the position but should not be confident of victory.

Q: Does the partial-closed-session approach satisfy the minor-page protection concern?
A: Partially. It avoids the minor having to testify in front of an open Committee meeting. But the transcript itself becomes a public record at conclusion, and the September 20 opinion confirmed there is no authority for the Committee to redact the page's name. So the partial-closed-session approach delays disclosure but does not eliminate it. The September 20 opinion's alternative (taking the testimony by private deposition outside any Committee session) raises distinct considerations and may protect identity slightly differently.

Q: Would these conclusions change if the Committee voted to release the records earlier?
A: The Committee can always release records sooner than required. The opinion sets the latest moment at which records must become public; nothing prevents earlier release. As a matter of governance, that is the Committee's call.

Background and statutory framework

This opinion is the second in a 5-day pair on the same House Ethics Committee inquiry. The September 20 opinion settled (or flagged) the threshold questions: investigatory reports are public records; closed-session authority under § 143-318.11(a)(6) is uncertain because of the 1994 amendments' internal tension; and the Committee cannot redact a minor witness's name from a transcript that becomes public at conclusion. The September 25 opinion refines the operational picture: assuming closed-session authority exists, partial use is fine, and timing of public-record availability turns on whether materials can lawfully be characterized as part of the closed-session minutes.

The two opinions together capture the tension at the heart of NC's transparency framework in 1995: a strong preference for open proceedings and broad public access to government records, combined with discrete carve-outs that allow sensitive matters (personnel discussions, attorney-client communications, certain enforcement contexts) to be handled in closed session. The Ethics Committee context was particularly hard because it combined a member-fitness inquiry (which the statute simultaneously seemed to permit and prohibit closing) with a minor witness whose identity the Committee wanted to protect (which the statute did not authorize). The AG's role was to identify the legally defensible paths through that tension, without inventing protections the legislature had not enacted.

Citations

• N.C.G.S. § 132-1 et seq. (Public Records Act)
• N.C.G.S. § 143-318.9 (Open Meetings Law)
• N.C.G.S. § 143-318.10(e) (closed-session minutes may be withheld only for as long as public inspection would frustrate the purpose of the closed session)
• N.C.G.S. § 143-318.11(a)(6) (allowance for closed-session consideration of fitness etc., with paired prohibition on closed-session consideration of those matters about a member of the public body or another public body)

Source

• Landing page: https://ncdoj.gov/opinions/open-meetings-public-records/

Original opinion text

September 25, 1995

The Honorable Julia C. Howard Chair, House Ethics Committee North Carolina General Assembly State Legislative Building Raleigh, N.C. 27601

RE: Advisory Opinion, Open Meetings, Public Records, N.C.G.S. §§ 132-1, et seq., 143-318.9.

Dear Ms. Howard:

We have received your request dated September 22, 1995, for an opinion on two follow-up questions to our previous opinion dated September 20, 1995. Set forth below are our opinions to your additional questions as the Ethics Committee considers procedures for investigating and considering sexual harassment charges against a member of the House.

QUESTION:

May the Committee proceed under N.C.G.S. § 143-318.11(a)(6) in closed session for the limited purpose of taking the testimony of a former page who is a minor and who is unwilling to testify except in closed session but proceed in open session for the remainder of its investigation and deliberation?

ANSWER:

Yes. Assuming that the Committee can go into closed session under N.C.G.S. § 143-318.11(a)(6) at all, it can, at its discretion, proceed in closed session for a portion of its deliberations and proceed in open session for other portions. If it chooses to go into closed session for the purpose of taking the testimony of a former page who is a minor and who is unwilling to testify except in closed session, we believe the transcript of the testimony is part of the minutes of the closed session. As such, the transcript is a public record and may be held from public inspection only for so long as "public inspection would frustrate the purpose of [the] closed session." N.C.G.S. § 143-318.10(e). As stated in our initial opinion, we believe this would make the full transcript available for public inspection no later than at the conclusion of the Committee's proceedings.

QUESTION:

May the Committee consider and discuss investigatory reports in closed session under N.C.G.S. § 143-318.11(a)(6)?

ANSWER:

Yes. Again, assuming that the Committee can go into closed session under N.C.G.S. § 143-318.11(a)(6), it can do so for the purpose of considering and discussing investigatory reports. Such reports are public record and must be made available for public inspection. The law, however, does not make clear when public inspection should occur. If the Committee chose to make the reports part of the minutes of the closed session, the reports arguably could be held for public inspection under N.C.G.S. § 143-318.10(e) until the conclusion of the Committee's proceedings. This result depends on whether the reports can lawfully be made part of the minutes of the closed session. Unlike the transcript of testimony taken in the closed session, however, investigatory reports contain information such as witness interviews, etc. obtained outside of the closed session. Arguably, this could distinguish investigatory reports received and discussed in a closed session from minutes of the proceedings of the closed session. In short, the Committee has a responsible basis for delaying public inspection of investigatory records until the conclusion of its proceedings. However, we are unable to predict with confidence how a court would rule in a lawsuit seeking public inspection of the reports prior to the conclusion of the Committee's proceedings.

We trust this is responsive to your questions. If we can be a further assistance, please let us know.

Andrew A. Vanore, Jr.
Chief Deputy Attorney General

John R. McArthur
Chief Counsel