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

The House Ethics Committee asked whether it could hear a minor former page's testimony in closed session while keeping the rest of its investigation and deliberations open. The AG answered yes, assuming the Committee had authority under N.C.G.S. § 143-318.11(a)(6) to close a session at all. On that assumption, it could close only part of its proceedings.

The AG said a transcript of testimony taken in closed session would be part of that session's minutes. It would be a public record, but could be withheld while inspection would frustrate the purpose of the closed session. The opinion says the full transcript would be available for public inspection no later than the conclusion of the Committee's proceedings. It does not discuss redacting the former page's name.

The Committee could also consider investigatory reports in closed session, on the same assumption about its authority. Those reports were public records. The timing of inspection was less certain: if the reports could lawfully be made part of closed-session minutes, the Committee could argue for withholding them until its proceedings ended. Because reports contain material gathered outside the closed session, the AG could not predict how a court would rule on a request to inspect them sooner.

Currency note

This is a 1995 opinion about the Committee's proposed procedure and the law then in force. Check current open-meetings and public-records provisions before applying it to a present proceeding.

Background and statutory framework

The September 25 letter answers two follow-up questions to a September 20 opinion. It expressly leaves the threshold authority to close under N.C.G.S. § 143-318.11(a)(6) as an assumption. The opinion applies N.C.G.S. § 143-318.10(e) to the closed-session transcript and discusses, without resolving, whether separately prepared reports could be treated as part of closed-session minutes. It gives no procedure for a private deposition or redaction.

Common questions

Could the Committee close only the former page's testimony?

The AG said yes if the Committee could lawfully use § 143-318.11(a)(6) to close a session. It could otherwise conduct parts of the proceeding in open session.

When would the testimony transcript be available?

The opinion says no later than the conclusion of the Committee's proceedings. Earlier inspection would depend on whether it would frustrate the purpose of the closed session.

Could the Committee delay inspection of investigatory reports until the proceedings ended?

The AG identified a responsible argument for delay if the reports could be made part of the closed-session minutes, but could not predict how a court would rule on earlier access.

Did this opinion authorize redacting the former page's name or taking a private deposition?

It discusses neither. Its answer concerns a transcript of testimony taken during a Committee closed session and the timing of public inspection.

Citations

• N.C.G.S. § 143-318.11(a)(6) (potential closed-session authority)
• N.C.G.S. § 143-318.10(e) (inspection of closed-session minutes)

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