If a North Carolina city's attorney gave the council legal advice about an employee five years ago, does the local newspaper have a right to see that advice now?

Plain-English summary

Grady Wheeler, the City Attorney for the City of Graham, was facing a public records request from the editor of The Alamance News. The editor wanted to inspect all of Wheeler's attorney-client communications with the City from 1993 through April 30, 1998, meaning everything older than three years at the time of the request. Many of Wheeler's communications addressed personnel matters: some involved litigation, some did not, and some were kept in individual employees' personnel files while others were not.

Wheeler asked whether N.C. Gen. Stat. § 160A-168(a), which keeps city personnel files confidential, blocked release of these old communications, or whether the three-year sunset in N.C. Gen. Stat. § 132-1.1 (which makes attorney-municipality communications public after three years) trumped the personnel-file confidentiality.

Senior Deputy AG Reginald Watkins and Assistant AG Daniel Addison answered that § 160A-168(a) wins.

The reasoning starts with the text of § 160A-168(a). The statute opens with the phrase "Notwithstanding the provisions of G.S. 132-6 or any other general law or local act concerning access to public records." That is a clear supersession clause: when § 160A-168(a) covers information, no general public-records rule overrides it. The statute also has no internal sunset; the confidentiality of a personnel file does not weaken with age. By contrast, § 132-1.1 has a built-in three-year sunset: attorney-municipality communications about litigation, settlement, or administrative proceedings are excluded from public records, but they become public three years after the municipality receives them.

Read together, the AG concluded that § 160A-168(a) supersedes the § 132-1.1 sunset for any portions of an old attorney-client communication that address confidential personnel information. The newspaper editor could not use the passage of time to force disclosure of personnel content just because the content happened to sit in the city attorney's files.

The AG also rejected the idea that the location of personnel information changes its character. The confidentiality bar in § 160A-168 turns on the substance (information about individual city employees), not on the file in which the document is stored. A memo about an employee's discipline is just as confidential when in the city attorney's legal files as it would be in the personnel director's files.

One important limit: § 160A-168 protects only information about individual employees. Attorney-client communications that addressed general policy questions, litigation strategy on non-personnel matters, or other topics outside the personnel-file definition would not get the supersession benefit. Those documents could be released under the ordinary § 132-1.1 three-year sunset.

The practical result in 2001: Wheeler had to review each old document the editor requested. For each, he asked whether the document contained information about individual city employees that would have been confidential if it had been in the personnel file. If yes, § 160A-168(a) kept the document confidential, even years later. If no, the § 132-1.1 three-year sunset applied, and the document had to be released. The newspaper got the non-personnel materials but not the rest.

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. North Carolina has revised its public records and personnel-confidentiality statutes multiple times since 2001, including 2007 amendments that opened parts of municipal personnel files to disclosure (such as final disciplinary actions). Anyone facing a current records request involving old attorney-client communications and personnel files should consult the current text of §§ 132-1.1 and 160A-168 and recent NC appellate decisions.

Background and statutory framework

The two competing statutes. Section 132-1.1, the attorney-client exclusion within the Public Records Act, says public records do not include written communications from an attorney to a represented municipality if the communications are within the attorney-client relationship and concern prosecution, defense, settlement, or litigation. The exclusion is bounded: after three years from receipt, the communications "become public records." Section 160A-168, the municipal personnel-file statute, makes personnel files (any information in any form gathered by the city about an employee) confidential except in narrow circumstances. Section 160A-168 has no sunset.

The "Notwithstanding" clause as a supersession marker. Statutory drafters use "Notwithstanding" to signal that a specific rule overrides a general rule even if the general rule's text would suggest otherwise. Section 160A-168(a)'s opening clause is exactly that kind of marker. It begins: "Notwithstanding the provisions of G.S. 132-6 or any other general law or local act concerning access to public records, personnel files ... are subject to inspection and may be disclosed only as provided in this section." Because § 132-1.1 is a "general law concerning access to public records," it is squarely within the supersession scope.

Why content, not container, controls. The AG was explicit on this point: "the confidentiality of individual personnel documents is determined by their contents, not by their form or location." A city attorney might keep a hard copy in a litigation file, a soft copy on a personal device, or include the substance in an email to the city manager. The information's status under § 160A-168 does not change. This means a city cannot expose otherwise-confidential personnel information by moving it out of the personnel file, and a requester cannot pry it loose by pointing to where it is stored.

The misdemeanor backstop. Section 160A-168 makes unauthorized disclosure of confidential personnel materials a misdemeanor. A city attorney who released old attorney-client communications containing confidential personnel information, in reliance on the § 132-1.1 three-year sunset, would expose herself to misdemeanor liability. The AG's reading protects the attorney from that risk.

The limit: only individual-employee information. Section 160A-168 protects information about individual employees: their application, performance, promotions, demotions, transfers, discipline, evaluations, leave, salary, and termination. General policy advice, organizational structure, or non-employee-specific legal analysis does not fall under § 160A-168 and therefore does not benefit from the supersession. Old advice memos about city governance, contract interpretation, or non-personnel litigation would become public under § 132-1.1 after three years.

Practical line-drawing in 2001. Wheeler's situation required a document-by-document review. For each old communication the editor sought, Wheeler had to ask: does this document contain information about an individual city employee that would have been confidential in the personnel file? If yes, withhold under § 160A-168. If no, release under § 132-1.1. Mixed documents could be redacted to remove the personnel content while releasing the rest. This is the standard municipal-records-request workflow when two statutes intersect.

Common questions

Q: Does this rule apply to county personnel files too?

A: The opinion addressed § 160A-168 (cities) specifically. Counties have their own personnel statute, § 153A-98, with parallel structure. The same supersession logic should apply to county attorney-client communications containing county personnel information, but the AG opinion does not formally extend its holding there.

Q: What about attorney-client communications addressing the city's labor relations with its workforce as a whole?

A: Workforce-wide policy advice is generally not "personnel file" information about individual employees. The § 132-1.1 three-year sunset would apply to that material, and it would become public after three years.

Q: If the newspaper editor sued, what would the court do?

A: The opinion does not address litigation strategy. Subsequent court decisions on §§ 132-1.1 and 160A-168 have generally tracked the supersession reading the AG adopted here. A 2001 court would have applied the same statutory text and probably reached the same conclusion, but courts (and the General Assembly) have continued to refine the balance since.

Q: Can the city voluntarily release the personnel-content communications even though it is allowed to withhold them?

A: Section 160A-168 lists narrow circumstances for permitted disclosure (consent of the employee, court order, etc.). A city that releases personnel information outside those circumstances exposes itself to misdemeanor liability under § 160A-168. The opinion's framework is mandatory withholding, not optional withholding.

Citations from the opinion

• N.C. Gen. Stat. § 132-1.1
• N.C. Gen. Stat. § 132-6
• N.C. Gen. Stat. § 160A-168(a)

Source

• Landing page: https://ncdoj.gov/opinions/authority-of-the-city-of-graham-to-disclose-attorney-client-communications/

Original opinion text

• N.C. Gen. Stat. § 132-1.1 provides that public records do not include written communications from an attorney to a municipality represented by the attorney if those communications are within the scope of the attorney-client relationship and if the communications involve the prosecution, defense, settlement or litigation of judicial actions or administrative proceedings which affect the municipality. This section provides, however, that such communications become public records, and are thus required to be disclosed upon request, three years from the date such communications were received by the municipality.

• N.C. Gen. Stat. § 160A-168(a) provides that, notwithstanding the provisions of the Public Records Act, personnel files of employees, former employees and employment applicants maintained by a city may not be disclosed except under specified limited circumstances. A "personnel file" is described as any information in any form gathered by the city with respect to that employee. The statute describes the following examples of information considered to be part of a personnel file: information relating to the employee's application, selection or nonselection, performance, promotions, demotions, transfers, suspension and other disciplinary actions, evaluation forms, leave, salary, and termination. Disclosing these confidential materials is a misdemeanor.

In your letter, you said that you have provided written advice to the City Manager and City Council on personnel matters. Some of these matters involved litigation, and some did not. Some of these communications may be kept in the personnel file folders of individual employees, and some may not. You said that you have received a public record request from the editor of The Alamance News, who has asked to inspect all of your attorney-client communications with the City of Graham from 1993 through April 30, 1998 (three years ago). You asked whether N.C. Gen. Stat. § 160A-168(a) forbids the disclosure of some or all of your communications concerning personnel matters, or whether these communications must be disclosed three years after they were received, pursuant to N.C. Gen. Stat. § 132-1.1.

We conclude that written attorney-client communications to the City (including the City Manager and City Council) which are more than three years old, but which address matters made confidential by N.C. Gen. Stat. § 160A-168(a), are not public records. By its specific terms N.C. Gen. Stat. § 160A-168(a) supersedes the requirement in N.C. Gen. Stat. § 132-1.1 that privileged attorney-client communications must be disclosed three years after they are received. It provides: "Notwithstanding the provisions of G.S. 132-6 or any other general law or local act concerning access to public records, personnel files . . . are subject to inspection and may be disclosed only as provided in this section." Nothing in N.C. Gen. Stat. § 160A-168 permits disclosing confidential personnel information based on its age.

The fact that personnel information made confidential by N.C. Gen. Stat. § 160A-168(a) is contained in the files of the city's attorney rather than the files of the city's personnel officer is of no legal consequence. Under N.C. Gen. Stat. § 160A-168, the confidentiality of individual personnel documents is determined by their contents, not by their form or location. In this regard, however, it is important to observe that the information made confidential by N.C. Gen. Stat. § 160A-168 is limited to information about individual employees.

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

Very truly yours,

Reginald L. Watkins Senior Deputy Attorney General

Daniel D. Addison Assistant Attorney General