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 had a stockpile of promotional slides and photographs. The Division wondered whether its policy of providing those images to any requesting entity was legally sound, and whether it could exercise any control over how recipients used the images after release. The AG, through Senior Deputy Attorney General Wanda G. Bryant and Associate Attorney General T. Brooks Skinner, Jr., gave three plain answers.

First, the photographs and slides are public records. N.C.G.S. § 132-1(a) defines public records to include "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." Photographs and films are listed explicitly. The images were made in connection with public business (tourism promotion). They are public records.

Second, the Division's policy of providing images to any requesting entity was not just consistent with the Public Records Law, it was required by the Law. Every custodian of public records has a statutory duty under § 132-6(a) to permit inspection and to furnish copies promptly upon payment of any applicable fees. So the Division's policy of disclosing the images on request matched what the statute mandated. The opinion gave the Division formal confirmation.

Third, and most practically, the Division had no authority to exercise control over downstream use. The Public Records Law does not specifically address post-release use control, but § 132-6(b) prohibits a custodian from requiring a requester to "disclose the purpose or motive for the request." If the Division could not even ask what the requester planned to do with the images, it could not effectively monitor or police that use. The AG concluded that the no-purpose-inquiry rule made any use-control regime unworkable as a matter of practice, and that the Division therefore had no authority to attempt it.

The opinion ended with a policy nudge. Section 132-1(b) declares that public records "are the property of the people" and that "the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law." Any Division policy or procedure had to be compatible with that legislative declaration. The AG was not just saying the existing policy was legal; it was saying the underlying philosophy (open access, no purpose inquiry, no use control) was what the statute demanded.

Currency note

This opinion was issued in 1997. 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. North Carolina's Public Records Law has been amended since 1997, including specific provisions on electronic records and copying fees. The core principles (photographs as public records, no purpose inquiry, limited custodial control) have continued. Federal copyright law, which the AG opinion did not address, is a separate consideration: third-party-authored photographs held in agency files may carry copyrights belonging to the photographer, complicating downstream use even if the Public Records Law mandates release. Current image-distribution programs should verify both the state public-records framework and any applicable copyright considerations.

Background and statutory framework

The Division of Travel and Tourism was at this time part of the North Carolina Department of Commerce and produced promotional imagery for use in state-funded tourism campaigns. The images depicted North Carolina destinations: mountains, coast, historic sites, festivals. They were a marketing tool, but also a public-records artifact under the Public Records Law's definitional sweep.

The AG opinion's central conceptual move was the literal application of § 132-1(a). The list in § 132-1(a) includes "photographs" and "films" by name. The Division did not need a special carve-out to be subject to the law. The records-belong-to-the-people declaration in § 132-1(b) reinforced the operational rule: the photographs are the people's records, and the Division is custodial steward of them, not their owner in any market-control sense.

The no-purpose-inquiry rule in § 132-6(b) is one of the strongest features of North Carolina's Public Records Law. Many states allow custodians to ask why a request is being made, sometimes to charge differential fees for commercial users or to apply different procedures. North Carolina rejects that approach. Whatever the requester's reason, the records flow. The 1997 opinion took the next step: if you cannot ask why, you cannot effectively impose downstream conditions on what the requester does with the records.

The opinion's caveat is the third-party-copyright issue, which it did not address but which is real. If the Division's photo library contains images licensed from third-party photographers or photo agencies, those photographers may hold copyrights that prevent the Division from authorizing certain downstream uses (commercial reproduction, derivative works) even though the Division must release copies. The 1997 opinion focused on the records-law side; copyright is a separate and parallel analysis.

Common questions

Could the Division have charged commercial users a higher fee than non-commercial users?

The AG opinion did not address fee tiers. The general Public Records Law allows fees prescribed by law, but the no-purpose-inquiry rule complicates differential pricing because the custodian cannot ask whether the use is commercial. Some agencies have adopted purpose-blind cost-recovery fees; the 1997 opinion did not endorse or prohibit such schemes specifically.

Could the Division ask the recipient to attribute the image to the State?

Practically, the Division could request attribution as a courtesy and as a marketing matter, but the AG opinion says the Division has no authority to require it as a condition of release. If a recipient declines to attribute, the Public Records Law does not give the Division a remedy against them.

What if the recipient uses the image in something that misrepresents North Carolina?

The 1997 opinion did not address that scenario. Post-release tortious or fraudulent use might be actionable on independent theories (defamation, misappropriation of state seal, false advertising), but the Public Records Law does not equip the Division with a tool to prevent or undo the release.

Does this rule apply to all state agencies, not just Travel and Tourism?

Yes. The opinion is about how the Public Records Law applies to a specific class of records (photographs), not about anything unique to Travel and Tourism. The same analysis would apply to imagery held by other state agencies, including the Department of Cultural Resources, the State Highway Patrol, and any university communications office, subject always to specific statutory exceptions (e.g., criminal-investigation files).

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