When the North Carolina Division of Travel and Tourism gives requesting parties copies of its promotional photographs and slides, can the Division attach use restrictions, or is it required to release the images and let recipients use them however they want?

Plain-English summary

North Carolina's Division of Travel and Tourism asked whether its policy of supplying slides and photographs to any requester complied with the Public Records Law, and whether it could control the images' use after release. The Attorney General's office said the disclosure policy was required by the law and that the Division had no authority under the law it analyzed to control use of the photographs once released.

The opinion relied on G.S. § 132-1(a), whose public-records definition expressly included photographs and films, and G.S. § 132-6(a), which required custodians to allow inspection and provide copies under the specified conditions. It also noted that § 132-6(b) did not allow a custodian to require the requester to disclose the request's purpose or motive. The opinion reasoned that monitoring or controlling later use would be impracticable and concluded that this Division could not do so. It did not analyze the records of other agencies, copyright, or other independent rules governing image use.

The opinion said any Division policy should be compatible with G.S. § 132-1(b)'s declaration that public records belong to the people and copies should be available free or at minimal cost unless law provides otherwise.

Currency note

This opinion addressed the Division's images and North Carolina's Public Records Law in 1997. Check current law and any other applicable rights for a present request or proposed use.

Common questions

Could the Division refuse a copy because it disliked the requester's proposed use?

The opinion said the Division's policy of giving requested slides and photographs was required under the cited Public Records Law, and the requester could not be required to reveal a purpose or motive.

Did the opinion authorize unrestricted use of every image held by any state agency?

No. It addressed the Division of Travel and Tourism's photographs under the Public Records Law. It did not analyze other agencies' records or separate rights affecting image use.

Could the Division control the photographs' use after release under this opinion?

The opinion said it lacked authority to control the use of those photographs once they were released to the public.

Source

• Landing page: https://ncdoj.gov/opinions/inspection-of-photographs-in-the-custody-of-division-travel-and-tourism/

Citations

• N.C.G.S. §§ 132-1(a), 132-1(b), 132-6(a), 132-6(b)

Original opinion text

1) Is the division's current policy of providing slides/photography to any entity requesting them consistent with the laws of this state?

North Carolina's Public Records Law defines public records as:

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 or North Carolina government or its subdivisions. N.C.G.S. § 132-1(a). (emphasis added)

The Public Records Law further states:

Every custodian of public records shall permit any record in the custodian's custody to be inspected and examined at reasonable times and under reasonable supervision by any person, and shall, as promptly as possible, furnish copies thereof upon payment of any fees as may be prescribed by law. N.C.G.S. § 132-6(a). (emphasis added).

Given the language contained in the above mentioned sections of the Public Records Law, we believe that the division's policy of providing slides or photography to any entity requesting them is not only consistent with, but required by Chapter 132.

2) Once provided, does the division have any authority to exercise control over the use of the slides/photography?

The Public Records Law does not specifically address whether the custodian of a record can exercise control over the use of a copy of that record provided pursuant to the Public Records Law. However, N.C.G.S. § 132-6(b) provides that, "[n]o person requesting to inspect and examine public records, or to obtain copies thereof, shall be required to disclose the purpose or motive for the request." If the custodian cannot require the requestor to disclose the purpose or motive for making the request for the record, any attempt to monitor or control the use of that record would be impracticable. Therefore, the division does not have any authority to exercise control over the use of the photographs once they have been released to the public.

3) Should the division make any changes to its current policy to more fully comply with the laws of this state?

Obviously, we can only comment as to the Public Records Law in the context of this advisory opinion. The division's policy should mirror the public policy outlined in Chapter 132 and that is:

The public records and public information compiled by the agencies of North Carolina government or it subdivisions are the property of the people. Therefore, it is the policy of this State that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law. N.C.G.S. § 132-1(b).

Any policy or procedure established by the division must be compatible to the public policy declared by the General Assembly in the above language.

We hope you find this information to be useful. Should you have additional questions or if you need clarification on any point discussed in this opinion, please do not hesitate to contact this office.

Wanda G. Bryant Senior Deputy Attorney General

T. Brooks Skinner, Jr.
Associate Attorney General