Are voice mail messages stored digitally on an agency's voice mail system (or analog tape on an answering machine) considered public records under North Carolina's Public Records Law?

Plain-English summary

The North Carolina Department of Insurance asked whether digital voice-mail messages stored on its equipment and analog messages recorded on answering-machine tapes were public records. The Attorney General's office answered that either type may be. The status of a particular message depends on its purpose and substance.

The opinion gave three questions for each recording. First, does it fall within the broad definition of a record in G.S. § 132-1? That definition includes sound recordings, tapes, and documentary material regardless of physical form; both types of messages can satisfy this step. Second, was the message made or received pursuant to law, ordinance, or lawful duties in connection with state business? This requires reviewing the individual message. Third, does a statutory exception apply? If the message concerns public business and no exception applies, it likely is a public record available for inspection.

The request also raised federal wiretap law. The opinion cited a federal case holding that someone who leaves a voice-mail message consents to its recording and that no interception occurs on those facts. It concluded that the federal Omnibus Crime Control and Safe Streets Act appeared not to apply to voice-mail records.

Currency note

This is a 1996 opinion about the public-records definition and federal law considered then. Check current statutes and any applicable exceptions for a present request.

Common questions

Is every message on an agency voice-mail system a public record?

No automatic answer applies. The opinion said each message requires a review of whether it was made or received in connection with public business and whether a statutory exception applies.

Does the answer change if the message is on analog tape rather than in a digital system?

The opinion said both kinds of recordings can fall within the statutory definition. Their physical format alone does not decide whether an individual message is a public record.

Did the opinion decide how long an agency must keep voice mail?

No. It addressed whether individual messages may be public records. It did not analyze retention periods or deletion practices.

Source

• Landing page: https://ncdoj.gov/opinions/application-of-public-records-law-to-voice-mail-records/

Citations

• N.C.G.S. § 132-1
• Chapter 132 of the N.C. General Statutes (Public Records Law)
• 18 U.S.C. § 2510 et seq.
• News and Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992)
• News and Observer Publishing Co. v. Wake County Hospital System, 55 N.C. App. 1, 284 S.E.2d 542 (1981), cert. denied, 305 N.C. 302, 291 S.E.2d 151, 459 U.S. 803 (1982)
• Payne v. Northwest Corporation, 911 F. Supp. 1299 (D. Mont. 1995)
• United States v. Turk, 526 F.2d 654 (5th Cir. 1976), cert. denied, 429 U.S. 823 (1976)

Original opinion text

April 18, 1996

Ann W. Spragens, General Counsel
Department of Insurance
430 North Salisbury Street
Raleigh, North Carolina 27603

RE: Advisory Opinion; Application of Public Records Law to Voice Mail Records; N.C.G.S. § 132-1

Dear Ms. Spragens:

We reply to your recent request for an opinion whether voice mail records, which are digitized and stored as binary encoded files in equipment located on your premises, are public records. Additionally, you inquire whether manual telephone answering machines, where the medium is analog magnetic tape, are public records. Based on the information that you provided, both types of voice mail records may be public records.

The relevant law regarding public records is found primarily in Chapter 132 of the North Carolina General Statutes. The Public Records Law provides the public with liberal access to public records, and absent a statutory exception, any record that falls within the definition of "public record" must be made available for public inspection. News and Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992). N.C.G.S. § 132-1 defines "public records" and provides in part that the term:

shall mean all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina or its subdivisions.

To answer your questions, three issues must be addressed. The first is whether a voice mail record falls within the definition of a public record. If so, the next inquiry is whether the record is made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina or its subdivisions. The final question is whether there is an applicable statutory exception to the general rule regarding public records.

The statutory definition of a public record is broad and comprehensive. It includes sound recordings and magnetic or other tapes, or other documentary material, regardless of physical form or characteristics. It would appear that all voice mail records fall within the first part of this definition. The same is true of voice recordings made on analog tape. This means that every voice mail record could, under some circumstances, be a public record.

The next inquiry is whether the voice mail records are "made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina or its subdivisions." This includes records kept in carrying out lawful duties. News and Observer Publishing Co. v. Wake County Hospital System, 55 N.C. App. 1, 284 S.E.2d 542 (1981) cert. denied, 305 N.C. 302, 291 S.E.2d 151, 459 U.S. 803, 103 S. Ct. 26, 74 L. Ed. 2d 42 (1982). This question can only be answered based on a review of each individual voice mail record. In considering each record, you must look at the substance of the voice mail record and determine if it was made pursuant to law, ordinance, or lawful duties while conducting State government business. If yes, then that particular voice mail record likely is a public record.

Finally, the substance of each individual voice mail record must be examined to see if it falls within one of the many statutory exceptions to the definition of public records. If there is no statutory exception, then that voice mail record likely is a public record.

You also inquire whether there are any federal preemption issues. The Omnibus Crime Control and Safe Streets Act, found at 18 U.S.C. 2510 et seq., generally prohibits the interception and disclosure of wire, oral, or electronic communications. In Payne v. Northwest Corporation, 911 F. Supp. 1299 (D. Mont. 1995), defendant Northwest Corporation alleged that plaintiff violated the federal wiretapping statute by recording messages left on his voice mail. The Federal District Court noted that persons leaving a message on voice mail consent to the recording of their message by the fact that they left a message. The Court held that an "interception" did not occur within the meaning of 18 U.S.C. 2510 et seq.. Id. at 1303. See, United States v. Turk, 526 F. 2d 654 (5th Cir. 1976), cert. denied, 429 U.S. 823, 97 S. Ct. 74, 50 L. Ed. 2d 84 (1976) (replaying of a previously recorded conversation excluded from the definition of "intercept"). It appears that the Omnibus Crime Control and Safe Streets Act does not apply to voice mail records.

In conclusion, voice mail records may be public records. Whether any particular voice mail record is a public record must be determined based on the individual record. This requires a careful analysis of the purpose and the substance of the record.

Reginald W. Watkins
Senior Deputy Attorney General

Diane G. Miller
Assistant Attorney General