When North Carolina DENR receives or prepares information under its Article 9 environmental programs, how should it determine whether federal FOIA protection also makes that information confidential under state law?

Plain-English summary

The North Carolina Department of Environment and Natural Resources asked how federal Freedom of Information Act exemptions relate to N.C.G.S. §130A-304(a)(2). That state provision makes information received or prepared by the Department while carrying out its duties under Article 9 of Chapter 130A confidential when the information is confidential under federal or state law.

The opinion explains the provision's history. EPA was concerned about disclosure of draft hazard ranking scores created before decisions on listing National Priorities Sites under CERCLA. EPA wanted the drafts protected under FOIA Exemption 5 and expressed concern about continuing to share or jointly generate them if North Carolina could not preserve their confidentiality. The state provision was added when §130A-304 was rewritten in 1991.

For an Article 9 information request, the AG advised DENR staff to examine state public-records exemptions and whether FOIA protects the information. The opinion describes two ways to identify a federal agency's claimed FOIA protection: a stipulation that information received by the federal agency be kept confidential under a specific FOIA provision, or a memorandum of agreement or similar document identifying the kinds of documents the agency expects to be treated as confidential. The information must acquire its confidentiality under federal law. The AG also recommended reviewing relevant agreements and consulting its office before denying a particular request.

Currency note

This opinion was issued in 2001. Check the current text of §130A-304 and applicable records law before using its analysis for a present-day request.

What this means for you

If you handle Article 9 records at the agency: The opinion instructs staff to assess both state records exemptions and the federal-law confidentiality asserted for particular information. It recommends clear language in relevant agreements and AG consultation before denying access in an individual case.

If you request an Article 9 record: The opinion describes a conditional confidentiality rule, tied to information that has acquired confidential status under federal or state law. It does not say every document received from EPA is confidential.

Common questions

Does the opinion apply §130A-304(a)(2) to every North Carolina agency record?
No. The quoted statute addresses information the Department receives or prepares while carrying out duties under Article 9 of Chapter 130A.

Why did the AG discuss draft hazard ranking scores?
They were EPA's example of predecisional material it wanted kept confidential under FOIA Exemption 5 when shared or generated with DENR.

Must a document have both a confidentiality stipulation and a memorandum of agreement?
The opinion presents these as alternative ways to identify the federal agency's claimed FOIA protection. It separately recommends reviewing agreements for clear language.

Did the AG decide a particular records request?
No. It offered general guidelines and recommended consulting the AG's office before denying access in a specific case.

Citations

• N.C.G.S. §130A-304(a)(2): confidentiality provision for information received or prepared under Article 9, quoted in the opinion.
• N.C.G.S. §132-6: state disclosure provision referenced in the statutory quotation.
• FOIA Exemption 5: the protection EPA sought for draft hazard ranking scores in the example.
• Chapter 745 of the 1991 Session Laws: rewrite in which the confidentiality provision was added.

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