When the NC State Auditor audits a state agency, can he look at the confidential personnel files of state employees without their permission, their department head's permission, or a court order, or does the State Personnel Act's confidentiality rule (G.S. § 126-24) block him?

Plain-English summary

The State Auditor, Ralph Campbell, Jr., asked whether his statutory authority to examine state agency records includes confidential personnel files. The State Personnel Act, in G.S. § 126-24, makes employee personnel files confidential and gives access only by employee consent, department head consent, or court order. The Auditor's statute, G.S. § 147-64.7(a)(1), gives him power to "examine and copy all books, records, reports, vouchers, correspondence, files, investments, and any other documentation of any State agency." Those two statutes appeared to be in tension.

AG Mike Easley's office, through Senior Deputy AG Reginald Watkins and Special Deputy AG Hal Askins, concluded that the State Auditor's audit powers control, for a specific reason: the legislature itself wrote a precedence rule in G.S. § 147-64.13. That section provides:

It is the intent of this Article that the establishment of the Office of the Auditor and the duties, powers, qualifications, and purposes herein specified shall take precedence over any conflicting part or application of any other law.

That is a legislative direction. Courts must interpret conflicting statutes according to whatever interpretive rules the legislature has adopted (In re Watson, 273 N.C. 629). When a statute itself says "we win in any conflict," the courts apply that rule. So § 147-64.7(a)(1)'s broad "all files" language defeats § 126-24's restrictive access rule whenever the two clash.

Important limits the AG built in. The Auditor's access power is not unbounded.

1. Audit relevance. The Auditor can demand the personnel file only when "he conducts an authorized audit and needs access to a personnel file to complete that audit." Fishing expeditions outside authorized audits are not authorized.

2. No criminal or tax investigation use. G.S. § 126-24 has its own internal limit prohibiting disclosure for purposes of "assisting in a criminal investigation, nor for purposes of a tax investigation." That limit is not in conflict with the Auditor's audit power, so it survives. The Auditor must respect it even after he obtains the file.

3. Continuing confidentiality. Once the Auditor has a personnel file in his possession, he is obliged to "preserve the confidentiality of personnel files . . . to the same extent as other state officers." This is especially significant because the Auditor must keep work files for ten years (G.S. § 147-64.6(d)).

4. Reading the statutes together where possible. The AG was careful to note that, outside of the specific access conflict, "no other provisions of Article 5A of Chapter 147 and Article 7 of Chapter 126 of the General Statutes appear to be in conflict." Under Jackson v. Guilford Board of Adjustment, 275 N.C. 155 (1969), non-conflicting provisions must be read together as one law.

The bottom line: when the State Auditor conducts an authorized audit and needs personnel files to do it, he can demand them directly without going through the employee, the department head, or a judge. But he holds those files under continuing confidentiality obligations and cannot use them for criminal or tax investigation.

Currency note

This opinion was issued in 1999. 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.

Article 5A of Chapter 147 (the State Auditor's authority) and Chapter 126 (the State Personnel Act, which was substantially reorganized into the "State Human Resources Act" in 2013) have both been amended since 1999. The general structure that the Auditor's audit access overrides confidentiality limits has held up. But the specific scope of "personnel file," the rules around contracted personnel records, and post-2013 changes to the SPA/SHRA architecture all need verification in the current statutes if the question arises today.

Common questions readers actually have

What protections does the State Personnel Act usually give to personnel files?

G.S. § 126-24 declares them confidential. Public access is generally limited to certain categories of information (name, position, dates of employment, salary). Substantive contents (evaluations, disciplinary actions, medical info) are confidential. Disclosure of confidential personnel information is a criminal misdemeanor under § 126-27.

So under this opinion, can the Auditor publish what he finds?

No. The opinion is about access, not about disclosure. The Auditor obtains the file for audit purposes and must protect it. If the Auditor wrote an audit report that included confidential personnel-file contents in a way that revealed them publicly, he would be violating the same confidentiality rules everyone else is bound by.

What if a state employee refuses to consent?

Under this opinion, the employee's refusal doesn't block the Auditor. § 147-64.13 makes the Auditor's powers control over the conflicting consent requirement in § 126-24.

Could the General Assembly take this power away?

Yes. Statutes can be amended. Article 5A is statutory; the legislature could pass a new section limiting the Auditor's access to personnel files, and that limitation would then apply going forward. The opinion is reading the statutes as they stood in 1999.

Why does the Auditor need this much access?

Audits often turn on personnel-related questions: was a position properly classified? was overtime paid correctly? did the agency follow its own hiring procedures? were performance bonuses justified? Those questions cannot be answered without looking at personnel files. The legislature built a system where the Auditor can ask, the agency must answer, and the confidentiality protections move with the files into the Auditor's custody.

How does this relate to grand jury subpoenas or other investigative tools?

A criminal investigator or a grand jury investigating a state employee operates under its own authority (criminal procedure, court orders, etc.). This opinion does not change those processes. The Auditor's access is an audit tool, distinct from criminal investigative tools and explicitly limited by § 126-24's "no criminal or tax investigation" carve-out.

Background and statutory framework

Article 5A of Chapter 147: the State Auditor's powers

G.S. § 147-64.4(1). Charges the Auditor to audit "government, organizations, programs, activities, and functions."

G.S. § 147-64.6(b). Requires the Auditor to examine state agencies' operating and administrative procedures and determine whether they conduct programs "in a faithful, efficient, and economical manner."

G.S. § 147-64.6(d). Imposes a ten-year retention obligation on Auditor work files.

G.S. § 147-64.7(a)(1). The access power: examine and copy all books, records, reports, vouchers, correspondence, files, investments, and any other documentation of any state agency.

G.S. § 147-64.13. The precedence clause: Article 5A "shall take precedence over any conflicting part or application of any other law."

G.S. § 126-24: the personnel-file confidentiality rule

Limits access to personnel files. The default access points are employee consent, department head consent, and court order. It also prohibits disclosure for criminal or tax investigation purposes (a separate restriction that survives the precedence analysis because it doesn't conflict with the audit power).

The interpretive moves

Legislative interpretive guides control. In re Watson, 273 N.C. 629 (1968). When the General Assembly tells courts how to resolve conflicts among statutes, that direction controls.

Read statutes together where possible. Jackson v. Guilford Board of Adjustment, 275 N.C. 155 (1969). Statutes on the same subject must be construed together as one law where they don't conflict.

The signing officials

The opinion was signed by Reginald L. Watkins, Senior Deputy Attorney General, and Hal F. Askins, Special Deputy Attorney General (Motor Vehicles Section). Vanore's reply-to header noted the unusual section: this opinion crossed over from the Motor Vehicles Section.

Source

• Landing page: https://ncdoj.gov/opinions/authority-of-the-state-auditor-to-examine-personnel-records/

Original opinion text

Reply to: Hal F. Askins
Motor Vehicles Section
Telephone No.(919) 716-6650
Fax. No. (919) 716-6708

March 5, 1999

The Honorable Ralph Campbell, Jr.
State Auditor
300 N. Salisbury Street
Raleigh, N.C. 27603

RE: Advisory Opinion; Authority of State Auditor to Examine Personnel Records; Article 5A, Chapter 147 and N.C.G.S. § 126-24

Dear State Auditor Campbell:

You request our opinion whether the provisions of Article 5A of Chapter 147 of the General Statutes, specifically the provisions of N.C.G.S. § 147-64.7(a)(1), supersede the provisions of N.C.G.S. § 126-24. We conclude that pursuant to N.C.G.S. § 147-64.13 the provisions of N.C.G.S. § 147-64(a)(1) supersede the provisions of N.C.G.S. § 126-24 to the extent they conflict. Specifically, we conclude that the Auditor's power to examine documents in the course of an authorized audit includes the power to examine confidential employee personnel files relevant to that audit without the consent of the employee or his employer.

The State Auditor is charged by the General Assembly to audit "government, organizations, programs, activities, and functions." N.C.G.S. § 147-64.4(1). This duty includes the duty "independently . . . to examine into and make findings of fact on whether State agencies . . . [h]ave established adequate operating and administrative procedures and practices . . . [and] [a]re conducting programs and activities . . . in a faithful, efficient, and economical manner in compliance with and in furtherance of applicable laws . . . ." N.C.G.S. § 147-64.6(b). In order to perform these duties, the General Assembly has conferred broad powers on the Auditor including the power to "examine and copy all books, records, reports, vouchers, correspondence, files, investments, and any other documentation of any State agency." The General Assembly has also directed that this power be construed broadly to take precedence over conflicting laws. N.C.G.S. § 147-64.13 provides:

It is the intent of this Article that the establishment of the Office of the Auditor and the duties, powers, qualifications, and purposes herein specified shall take precedence over any conflicting part or application of any other law.

In N.C.G.S. § 126-24, the General Assembly has concluded that the personnel files of state employees shall be confidential and has sharply restricted access to those files. Under that statute, the Auditor cannot obtain access to a personnel file except by permission of the employee, permission of the employee's Department Head or a court order. This limitation on the Auditor's access to personnel files conflicts with the authority granted him in N.C.G.S. § 147-64.7(a)(1) to "examine and copy all . . . files . . . of any state agency."

The General Assembly has prescribed the rule to be applied in resolving this conflict and that rule is determinative. See In re Watson, 273 N.C. 629, 632, 161 S.E.2d 1 (1968) (statutes must be interpreted in light of interpretative guides adopted by the General Assembly). Pursuant to N.C.G.S. § 147-64.13, the Auditor's power to "examine and copy . . . all . . . files . . . of any state agency" takes precedence over any conflicting part or application of N.C.G.S. § 126-24. Accordingly, it is our opinion that when the Auditor conducts an authorized audit and needs access to a personnel file to complete that audit, he is entitled to obtain that file on demand without the permission of the employee, the employee's Department Head or a court order.

It should be noted, however, that no other provisions of Article 5A of Chapter 147 and Article 7 of Chapter 126 of the General Statutes appear to be in conflict. In the absence of such conflict, the rules of statutory construction require that the provisions of both sets of statutes be given full effect. See Jackson v. Guilford Board of Adjustment, 275 N.C. 155, 166 S.E.2d 78 (1969) (statutes dealing with the same subject matter must be read "together as constituting one law"). Construing the relevant statutory provisions as one law, we conclude: (1) that the Auditor may not divulge any part of a confidential personnel file "for purposes of assisting in a criminal investigation, nor for purposes of a tax investigation," N.C.G.S. § 126-24, and (2) that the Auditor is obliged to preserve the confidentiality of personnel files in his possession to the same extent as other state officers having confidential personnel files in their possession. This latter obligation is particularly significant given the Auditor's duty to maintain work files for ten (10) years. N.C.G.S. § 147-64.6(d).

We hope this fully answers your request. Should you have further questions regarding this issue, please do not hesitate to contact this office.

Sincerely yours,

Reginald L. Watkins
Senior Deputy Attorney General

Hal F. Askins
Special Deputy Attorney General