When the federal Environmental Protection Agency shares draft hazardous-site rankings or other pre-decisional documents with North Carolina's environmental department, do North Carolina's open records laws require the state to release them to the public, or can the state keep them confidential under federal Freedom of Information Act exemptions?
Plain-English summary
North Carolina has a strong public records law. N.C.G.S. § 132-6 generally requires public agencies to provide access to records they generate or receive in the course of doing public business. The General Assembly has built in narrow categories of exempt records (personnel files, certain criminal investigative materials, attorney-client communications, and others), but the default tilt is toward disclosure.
This created a friction point for North Carolina's environmental department when it worked alongside the federal Environmental Protection Agency. EPA generates a lot of analytical material in the course of identifying and ranking contaminated sites under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). Some of that material, such as draft hazard ranking scores used to evaluate whether a site should go on the National Priorities List, is predecisional. Federal FOIA Exemption 5 lets agencies keep predecisional, deliberative materials out of public release while they decide what to do.
When EPA shared those predecisional materials with North Carolina's Department of Environment and Natural Resources (DENR), under federal-state cooperative agreements or delegated programs, EPA was concerned that the moment a document crossed into state files, the North Carolina Public Records Act might require its release. That would defeat the federal interest in keeping predecisional materials confidential, and it would also disincentivize EPA from sharing information with the state in the first place. EPA put the concern bluntly: if the state could not preserve federal confidentiality, EPA would limit cooperation.
The General Assembly's solution was a 1991 amendment to N.C.G.S. § 130A-304. The amendment, enacted as Chapter 745 of the 1991 Session Laws, added a subsection that made information confidential under the federal or state public records statutes also exempt from disclosure under N.C.G.S. § 132-6. In effect, federal FOIA exemptions get imported into the state's records statute through this single sentence.
The 2001 AG opinion explained how to make this work in practice. DENR staff facing an information request should:
- Apply normal North Carolina Public Records Act analysis first. If the document is exempt under § 132-6 itself, the inquiry is over.
- If the state act does not exempt the document, ask whether any federal or state confidentiality statute applies. For documents received from EPA, this means asking whether the document falls within a specific FOIA exemption (Exemption 5 for predecisional documents, Exemption 4 for trade secrets, Exemption 7 for law enforcement records, etc.).
- Confirm that EPA shared the document with the expectation of confidentiality. The cleanest way to do this is to have a memorandum of agreement between EPA and the state agency identifying the categories of documents that EPA expects to be treated as confidential under FOIA, and to make sure the document at issue falls within those categories.
The opinion's practical guidance was: review existing memoranda of agreement to make sure FOIA-protection language is clearly stated, and amend any documents that lack such language. Without the documentary trail, the state cannot easily prove the federal confidentiality status of a document if its denial of a public records request is challenged.
The opinion ended with a sensible caveat: the analysis only sketches general guidelines, and DENR should consult the AG's office before denying public records access on a specific request. The cost of erroneous denial (lawsuit, court order to disclose) is much higher than the cost of consultation.
Currency note
This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The federal FOIA has been amended significantly since 2001, including by the OPEN Government Act of 2007 and the FOIA Improvement Act of 2016. The NC Public Records Act has also been amended. Article 9 of Chapter 130A and the structure of state environmental agencies (DENR is now the Department of Environmental Quality, or DEQ) have been reorganized. The core mechanism the opinion describes (state importation of federal exemptions via § 130A-304(a)(2)) remains, but the specific federal exemptions that apply to specific records categories have evolved. Records custodians should consult current FOIA exemption case law and current memoranda of agreement before relying on this analysis.
Background and statutory framework
Why N.C.G.S. § 130A-304(a)(2) exists. The provision is an unusual species of public records exemption: rather than identifying specific record categories that are exempt (the typical pattern), it broadly imports any record made confidential by "any provision of federal or state law." This kind of catch-all incorporation is rare in state records statutes. The General Assembly chose it because the alternative would have required tracking every federal statute that might make a record confidential and writing North Carolina equivalents.
The legislative motivation was operational. The Environmental Protection Agency was unwilling to share certain analytical and predecisional documents with NC DENR if the documents would become subject to immediate release under the state public records act. The 1991 amendment let EPA know that documents shared with NC would carry their federal confidentiality status with them. The economy of cooperation depended on this; otherwise EPA would just hold the documents close and conduct CERCLA analyses without sharing them with the state.
The CERCLA context. CERCLA is the federal Superfund statute. It authorizes EPA to identify, investigate, and clean up sites contaminated by hazardous substances, and to recover cleanup costs from responsible parties. The National Priorities List ("NPL") ranks contaminated sites for prioritized cleanup. Sites are scored using the Hazard Ranking System ("HRS"), which produces a numerical hazard ranking score. Draft HRS scores are predecisional; they may change as additional information comes in. EPA traditionally treats draft scores as exempt from public release under FOIA Exemption 5 because they are part of the agency's deliberative process for deciding whether to list a site on the NPL.
If a draft HRS score becomes publicly available before EPA makes its listing decision, the consequences can be significant. Affected landowners may take protective legal action that constrains EPA's options; press coverage may force an early decision that ignores incomplete information; potentially responsible parties may take economic actions (transfers, restructurings) that limit cost recovery. EPA's interest in keeping draft scores confidential is real.
FOIA Exemption 5 in practice. 5 U.S.C. § 552(b)(5) exempts from FOIA disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." Courts have read this to incorporate the deliberative process privilege, the attorney-client privilege, the attorney work product doctrine, and other civil discovery privileges. Predecisional materials that reflect agency deliberation about a policy or decision are within Exemption 5's deliberative process privilege; final decisions and post-decisional documents are not.
The cooperative federalism interplay. Many federal environmental programs are administered by states under delegated authority or in cooperation with EPA. For example, the Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act, and Safe Drinking Water Act all have state implementation structures that involve significant information sharing between EPA and state agencies. The 2001 opinion's mechanism applies to documents received through any of these cooperative structures, not just CERCLA.
The memorandum of agreement as evidentiary anchor. The opinion's recommendation to use written agreements to identify confidential document categories reflects evidentiary realism. When a state agency denies access to a record on the ground that EPA expects the record to be treated as confidential under FOIA, the agency has to be able to back that claim up. A memorandum of agreement that pre-identifies the categories of confidential documents is the cleanest way to do that. Without one, the state agency has to make ad hoc determinations under contested circumstances, which is slow and easy to get wrong.
The "federal or state law" sweep. Section 130A-304(a)(2) reaches confidentiality provisions under federal or state law. The federal piece is what drove the 1991 amendment, but the state piece is also relevant. Some state statutes (HIPAA-equivalent state confidentiality rules, attorney-client privilege provisions, sealed court records statutes, etc.) make records confidential. The amendment ensures that documents already protected by another state law do not lose protection when they touch DENR.
Why a general guideline is needed instead of case-by-case rulings. The 2001 opinion is structured as general guidance rather than a per-document determination because public records requests come in unpredictable shapes, and DENR records custodians have to make daily decisions without AG involvement on every request. The opinion sets up the analytical framework: (1) check Public Records Act exemptions first, (2) check whether federal or state confidentiality applies, (3) document the basis for any denial. For ambiguous cases, the opinion expressly invites consultation with the AG's office before denying access.
Common questions
Q: Can a North Carolina state agency keep records secret just by saying they're confidential under federal law?
A: No, not without doing the analysis. The agency has to identify the specific federal provision that makes the record confidential (typically a specific FOIA exemption) and show that the provision actually applies to this record. The default in NC is disclosure under § 132-6; the burden is on the state agency to establish a specific basis for confidentiality under § 130A-304(a)(2) (or another exemption statute).
Q: What kinds of documents does EPA typically share with state agencies that need this confidentiality protection?
A: Predecisional analytical documents (draft hazard ranking scores, draft enforcement memoranda, draft inspection reports), trade secret information submitted by regulated entities, law enforcement investigation materials, and attorney work product. Each of these falls within a specific FOIA exemption. When EPA shares them with a state agency, the FOIA exemption follows the document through § 130A-304(a)(2).
Q: What happens if a state agency denies access to a record on this basis, and the requester sues?
A: The court will require the agency to demonstrate that the document is in fact confidential under federal or state law. The agency's evidence may include the document itself, federal agency declarations about the document's status, the memorandum of agreement between the state and federal agencies, and case law applying the relevant FOIA exemption. If the agency cannot make the showing, the court will order disclosure. This is why the 2001 opinion stresses the importance of well-drafted memoranda of agreement.
Q: Does this analysis apply outside the environmental context?
A: Section 130A-304 is specific to Article 9 of Chapter 130A (hazardous waste and disposal sites). But the general mechanism (state public records act exemption for information confidential under another federal or state law) appears in some other parts of North Carolina law as well. Anyone working with a state agency that receives federal information should check both the agency's specific records exemption statute and any cooperative agreement with the federal partner.
Q: How does this work when the federal information becomes part of a final state decision?
A: Post-decisional documents lose Exemption 5 protection because they are no longer predecisional. So once EPA finalizes a listing decision based on a hazard ranking score, the final score is generally subject to disclosure. The state agency's confidentiality analysis tracks the federal status: pre-decisional documents stay confidential; post-decisional ones become disclosable when their federal status changes. This is why the opinion advises consulting the relevant memorandum of agreement and checking the document's specific status at the time of the request.
Q: Can a state legislator override this analysis by demanding a record?
A: Generally no. The North Carolina Public Records Act applies the same access right to all requesters (citizens, journalists, lawyers, legislators); there is no special legislator-priority. The federal confidentiality provisions also apply the same to all requesters. A legislator's request for an EPA predecisional document does not change the document's status. The legislator can, however, work through congressional oversight channels (via federal congressional members) to get the document from EPA directly through the federal oversight machinery, which has different rules.
Citations
State statutes
- N.C.G.S. § 130A-304(a)(2) — information confidential under any provision of federal or state law is also exempt from N.C. Public Records Act disclosure.
- N.C.G.S. § 132-6 — general state right of access to public records held by state and local agencies.
- N.C.G.S. § 130A, Article 9 — hazardous waste / inactive hazardous substance or waste disposal site provisions implemented by DENR (now DEQ).
- Chapter 745 of the 1991 Session Laws — the 1991 amendment that added § 130A-304(a)(2) to import federal confidentiality protections.
Federal statutes
- Federal Freedom of Information Act, 5 U.S.C. § 552 — federal records access statute with nine express exemptions.
- 5 U.S.C. § 552(b)(5) — FOIA Exemption 5, covering inter-agency/intra-agency predecisional and privileged communications.
- Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq. — federal Superfund statute that EPA implements through state cooperative arrangements.
Source
- Landing page: https://ncdoj.gov/opinions/freedom-of-information-act/
Original opinion text
Reply to: Judith Robb Bullock
Environmental Division
Tel. (919) 716-6600 Fax (919) 716-6939
January 4, 2001
Mr. Daniel McLawhorn
Office of General Counsel
Department of Environment and Natural Resources
1601 Mail Service Center
Raleigh, North Carolina 27699-1601
RE: Advisory Opinion Regarding the Applicability of the Freedom of Information Act (FOIA) Exemptions to N.C.G.S. §130A-304(a)(2)
Dear Dan:
You requested advice from the Attorney General's Office regarding the applicability of the Freedom of Information Act (FOIA) exemptions to N.C.G.S. §130A-304(a)(2). Specifically, you requested an explanation of the relevant FOIA exemptions in order for DENR staff to take appropriate action in response to information requests arising from the programs which are subject to Article 9, Chapter 130A.
N.C.G.S. §130A-304(a) states that "the following information received or prepared by the Department in the course of carrying out its duties and responsibilities under this Article is confidential information and shall not be subject to disclosure under N.C.G.S. §132-6: (2) Information that is confidential under any provision of federal or state law."
A review of the circumstances surrounding the adoption of this statutory language explains the motivation for the inclusion of this provision. The Environmental Protection Agency (EPA) expressed a concern that the North Carolina Public Records Act required disclosure of certain predecisional documents, specifically draft hazard ranking scores preliminary to the listing of National Priorities Sites under CERCLA, which were received by the Department from EPA or which the Department generated in the course of its EPA authorized or delegated Article 9 programs. EPA wanted these documents to remain confidential pursuant to Exemption 5 of FOIA. EPA expressed its unwillingness to continue to share such information with the Department, or to work with the Department in generating such information, if the confidentiality of this information, which was called for pursuant to FOIA, could not be assured by the Department. Thus, when N.C.G.S. §130A-304 was rewritten in 1991 (Chapter 745 of the 1991 Session Laws), the exclusion for information that is confidential under any provision of federal law was added at the behest of the Department.
DENR staff should, therefore, review requests for information by determining whether any of the exemptions from disclosure authorized by the North Carolina Public Records Act apply to the information received or prepared by the Department in the course of carrying out its duties and responsibilities under Article 9 of Chapter 130A. DENR staff must also determine whether such information is subject to any of the above exemptions from disclosure pursuant to FOIA, either by identifying whether such information was received by the federal agency with the stipulation that it be kept confidential pursuant to a specific FOIA provision, or by examining the relevant memorandum of agreement or similar document which should identify the types of documents that the federal agency expects to be treated as confidential pursuant to FOIA. Simply put, the information at issue must acquire its confidential status pursuant to federal law.
It would be advisable to conduct a review of all relevant memorandums of agreement or similar documents to insure that language addressing the federal agency's claim to FOIA protection is clearly set forth. If such language does not exist, it is advisable to revise such documents to reflect that the identified information is entitled to protection pursuant to the proper FOIA exemption.
This advisory opinion sets out general guidelines concerning the application of certain FOIA exemptions. Before access to public records is denied, we recommend that you seek the advice of our office concerning the application of the FOIA exemption to the facts of the particular request.
Very truly yours,
Daniel C. Oakley
Senior Deputy Attorney General
Judith Robb Bullock
Special Deputy Attorney General