When the General Assembly's Fiscal Research Division asks a state agency for information to write a fiscal note on pending legislation, who at the agency is allowed to know about the request, and can the agency tell other agencies or the public?

Plain-English summary

The North Carolina General Assembly's Fiscal Research Division prepares cost estimates ("fiscal notes") for pending legislation. To do that, it routinely asks executive-branch state agencies for information about how a proposed bill would affect operations, headcount, revenue, or spending. The legislature decided that those requests must be confidential while the analysis is pending, because the existence of a request might tip off lobbyists, the press, or other agencies that a particular bill is being seriously analyzed.

G.S. § 120-131.1 implements that confidentiality. The AG read the statute as imposing the following rules on state agency employees:

Outward disclosure. No officer or employee of a state agency may tell any member of the public, or any officer or employee of another state agency, either (a) that Fiscal Research has made a request, or (b) any document submitted to Fiscal Research in response. The only exception for outside-agency disclosure is the Office of State Budget and Management. The block lasts until Fiscal Research itself releases the fiscal note.

Inside-agency disclosure: need-to-know. When the employee handling the request needs help from a coworker to put a response together, the employee may reveal that Fiscal Research is the source, but only if disclosure is necessary to facilitate the response. The mere fact that a coworker is helping is not by itself enough. The test is whether the helper actually needs to know the source to do the work.

Supervisors are the exception. The need-to-know test does not apply between an employee and the employee's supervisor. Any employee who receives or learns of a request is automatically authorized to tell their supervisor, and that supervisor can tell their own supervisor, and so on up the chain of command. The AG read this as the normal administrative way for an agency to manage its workload, and the statute does not interfere with that.

Lateral chain knowledge. Once one employee has properly learned of a request (whether from Fiscal Research directly, from another need-to-know coworker, or from a supervisor), the same need-to-know and supervisor rules apply to that employee's further disclosures. The chain expands only as far as actually needed for response work.

Currency note

This opinion was issued in 1996. 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.

Background and statutory framework

Fiscal-note confidentiality matters more than it might appear at first glance. North Carolina, like most states, requires that bills with a fiscal impact be paired with a fiscal note before they move through the legislative process. Lobbyists and interest groups frequently want to know which bills the legislature is taking seriously enough to commission cost analyses; the existence of a Fiscal Research request is itself a signal. The General Assembly's confidentiality rule prevents that signal from escaping until the actual analysis is published, at which point everyone gets the same information at the same time.

The Office of State Budget and Management exception is structural. OSBM is the executive-branch counterpart to Fiscal Research; the two offices routinely coordinate on cost projections and budget analysis. Cutting OSBM out of the confidentiality loop would have created an absurd information asymmetry between the legislative and executive branches on budget questions, so the statute carved OSBM out.

The need-to-know standard the AG articulated tracks the standard government-confidentiality approach used in classified information handling, attorney-client privilege contexts, and personnel-file privacy. The "need" is not about who is curious, it is about who must know to perform an official task. The AG was clear that "I need help on this response" is not the same as "I need to tell the helper that Fiscal Research asked." Often the helper can just be asked to look up the data without being told why.

The supervisor exception reflects how state agencies actually run. Supervisors must be able to track what their staff are working on, allocate workload, and ensure consistency in agency responses to outside requests. Cutting supervisors out of the loop would have made the statute unworkable.

Common questions

Can an agency keep working on the fiscal-note response even after the bill becomes public?

Yes. The statute restricts disclosure of the request and of submitted documents, not the underlying response work. Once Fiscal Research releases the fiscal note, the confidentiality time-fuse runs out and the underlying agency work product is generally subject to normal public-records rules.

What if a lobbyist or reporter asks directly whether Fiscal Research has requested information on a particular bill?

The agency employee cannot answer that question (the answer would itself be a disclosure of the request). The proper response is not to confirm or deny, and to refer the questioner to Fiscal Research directly.

Does the rule apply to local government?

Section 120-131.1 by its terms covers state agencies. Local government agencies are not the typical recipients of Fiscal Research requests; when they are involved (e.g., a county requesting state-level analysis of a county-affecting bill), the analysis would likely turn on whether the local agency was acting as a state-bound recipient of a state request.

What is the penalty for an unauthorized disclosure?

The opinion does not discuss penalty. Section 120-131.1 itself sets out the confidentiality rule; whether a specific disclosure is sanctionable typically depends on agency personnel rules, civil-service law, and any applicable criminal-confidentiality statutes. The opinion treated the rule as a duty on agency employees, not as a criminal command.

Source

• Landing page: https://ncdoj.gov/opinions/disclosure-of-requests-for-assistance-from-fiscal-research-division/

Citations

• N.C. Gen. Stat. § 120-131.1

Original opinion text

• No officer or employee of any state agency may reveal the existence of a request from the Fiscal Research Division for information it needs to prepare a fiscal note to any member of the public or any officer or employee of any other state agency, except the Office of State Budget and Management, until such time as the Fiscal Research Division actually prepares and releases the fiscal note. Likewise, no officer or employee of any agency may reveal any document submitted to the Fiscal Research Division for preparation of a fiscal note to any member of the public or any officer or employee of any other agency, except the Office of State Budget and Management, until such time as Fiscal Research actually prepares and releases the fiscal note.

• In the event an employee needs assistance from another employee of his or her agency in providing the information requested by Fiscal Research, the employee may reveal the source of the request to the other employee only if it is necessary for the employee to know about the source of the request. The mere fact that an employee's assistance is necessary to prepare a response to a request is not sufficient in and of itself to permit disclosure of the fact that the request came from Fiscal Research. The employee may disclose the fact that Fiscal Research made the request only if that disclosure is necessary to facilitate a response to the request.

3. The foregoing "need-to-know" limitation does not apply to communications between an employee and his or her supervisor. Any employee who receives a request, or who obtains knowledge of a request, is authorized to inform his or her supervisor about the request. There is no limit on this authorization and we assume that in the ordinary course of events and consistent with normal administrative practices and procedures employees will inform their supervisors of such requests. In that fashion, information regarding a request will be passed up the agency's chain of command.

Finally, G.S. § 120-131.1(a) does not limit the authority to disclose a request for assistance from Fiscal Research to the employee who initially received the request from Fiscal Research. The statute also provides that any employee who learns of the request may inform other employees who need to know of the request, his or her supervisor, or the Office of State Budget and Management. Accordingly, once an employee or supervisor has learned that the Fiscal Research Division has made a request for assistance with the preparation of a fiscal note, that employee or supervisor may inform his or her supervisor of the request irrespective of their absolute need to know.

Edwin M. Speas, Jr.
Senior Deputy Attorney General

Thomas J. Ziko
Special Deputy Attorney General