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

In 1996, voice mail was relatively new. Agencies had been replacing tape-based answering machines with digital voice mail systems that stored messages as binary-encoded files on equipment located in the agency's premises. The Department of Insurance's general counsel asked the AG whether those voice mail recordings (and the older analog tape answering machine recordings) are public records under NC's Public Records Law in Chapter 132.

Senior Deputy AG Reginald W. Watkins and Assistant AG Diane G. Miller said yes, both types may be public records, with the determination requiring individual analysis of each recording.

The Public Records Law's broad scope. N.C.G.S. § 132-1 defines "public records" expansively:

"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."

The legislature explicitly listed "sound recordings" and "magnetic or other tapes" as covered formats. The phrase "regardless of physical form or characteristics" reinforces format-neutrality. News and Observer Publishing Co. v. Poole (1992) is the leading case for the proposition that the Public Records Law provides liberal access to public records, with disclosure as the default and statutory exceptions narrowly construed.

Three-step analysis. To determine whether a particular voice mail recording is a public record, the AG identified three questions:

1. Format check. Is the recording a covered format? For voice mail, yes (either digital binary-encoded files or analog tape, both fall within "sound recordings" or "magnetic or other tapes").

2. Public business nexus. Was the recording 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"? News and Observer Publishing Co. v. Wake County Hospital System (1981) clarified that this includes records kept in carrying out lawful duties. Each individual voice mail must be evaluated on its substance: a constituent leaving a message about a Department of Insurance regulatory matter would be a public business message; a personal call to an agency employee's voice mail about a private dinner plan might not be.

3. Statutory exception. Even if it qualifies as a public record under steps 1 and 2, is there an applicable statutory exception? Chapter 132 contains numerous exceptions for confidential information (e.g., personnel records, criminal investigation records, attorney-client communications). Each voice mail must be checked against the exceptions.

If all three steps come out "yes, no exception," the voice mail is a public record subject to disclosure.

Federal wiretap law does not preempt. Spragens also asked about federal wiretap law (18 U.S.C. § 2510 et seq., the Omnibus Crime Control and Safe Streets Act). The federal wiretap statute generally prohibits "interception" and disclosure of wire, oral, or electronic communications, but it has consent exceptions.

The AG cited Payne v. Northwest Corporation (D. Mont. 1995): a person who leaves a message on voice mail consents to the recording of that message by the fact of leaving it. So no "interception" occurs within the meaning of 18 U.S.C. § 2510 et seq. Replaying a previously recorded conversation is also outside the "intercept" definition per United States v. Turk (5th Cir. 1976).

Federal wiretap law is therefore not a barrier to producing voice mail under the Public Records Law. The agency, as the recipient of the voice mail, can disclose the recording without violating federal wiretap law.

Practical implications. The opinion makes clear that voice mail is not categorically excluded from the Public Records Law. Agencies cannot adopt blanket policies of "voice mail is not a public record" or routine deletion to avoid disclosure obligations. Each recording must be evaluated individually. This is an administrative burden, but it reflects the legislature's broad definition of public records.

Agencies should:

• Train employees that work-related voice mail may be a public record.
• Retain voice mail per the State's records retention schedules until determined non-public-record.
• Evaluate disclosure requests recording-by-recording.
• Apply statutory exceptions appropriately.

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. The Public Records Law has been amended on multiple occasions since 1996, including specific amendments addressing electronic records. Voice mail has largely been displaced by email and text messaging, which raise the same general questions in different formats. Federal wiretap law has been amended (notably the Patriot Act and FISA Amendments). Anyone facing a current question about voice mail records (or successor electronic communications) should consult current Chapter 132 and current Department of Cultural Resources Division of Archives and Records guidance on electronic records retention.

Background and statutory framework

NC's Public Records Law is one of the more permissive state public-records regimes in the country. The default is disclosure; the exceptions are narrowly construed; the agency bears the burden of justifying any non-disclosure. Poole (1992) is a foundational case establishing this presumption.

The expansive definition in § 132-1 is deliberately format-neutral. The legislature wrote the definition to anticipate technological change. "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" leaves little room for format-based exclusions.

The substance-of-public-business test is the meaningful filter. Not every communication on agency equipment is a public record. The test requires that the record be "made or received pursuant to law or ordinance in connection with the transaction of public business." A personal greeting from a friend is not a public record even if it's on an agency voice mail; a constituent's regulatory complaint is, even if the constituent did not realize they were creating a public record.

The federal wiretap analysis is also important. Federal wiretap law (the Electronic Communications Privacy Act amended 18 U.S.C. § 2510 et seq.) is one of the most important privacy statutes in U.S. law. The AG's reading (consent by leaving a message + no interception when an agency retrieves stored voice mail) is consistent with federal practice and federal court interpretation.

The opinion's reasoning extends to other electronic communications. Email, text messages, instant messages, and other modern communications stored on agency systems are subject to the same analysis: format-neutral inclusion in the definition, substance-based public-business analysis, statutory exceptions checked, and federal wiretap law not preempting because of consent.

Common questions

Does this mean agencies must retain voice mail indefinitely?

No. Public records have retention schedules set by the Department of Cultural Resources' Division of Archives and Records. Voice mail has its own retention schedule, generally shorter than for documents. Agencies must retain voice mail per the schedule but can delete it once the schedule allows. The retention schedule itself, however, must be consistent with the Public Records Law's substance.

Can an agency adopt a policy that voice mail is automatically deleted after 30 days?

Yes, if that policy is consistent with the applicable retention schedule and is applied consistently to all voice mail (not selectively to avoid disclosure of specific recordings). Selective deletion to avoid disclosure obligations could create legal exposure (spoliation, obstruction).

What if the voice mail is on an employee's personal phone forwarded to the agency?

The Public Records Law applies to records "made or received pursuant to law or ordinance in connection with the transaction of public business." If the employee's personal device is used for public business, voice mails on that device about public business may be public records. NC has had several cases (in the email context) addressing public officials' use of personal devices for public business. The general rule is that the substance of the communication matters, not the device.

What if the voice mail contains confidential information protected by another statute?

Statutory exceptions apply. Personnel information protected by Chapter 126, criminal investigation records protected by § 132-1.4, attorney-client communications protected by § 132-1.1, etc. The voice mail may be redacted or withheld in full per the applicable exception. The exception, not the format, governs.

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