Does North Carolina law require a county to let the public monitor its 800 MHz radio system in real time, or to record radio traffic that the county is not already recording?
Plain-English summary
Johnston County had moved to an 800 MHz trunked radio system for its emergency dispatch and law enforcement communications. Trunked digital systems are not as easily monitored by ordinary scanners as the older analog VHF/UHF systems were, so members of the public and media outlets had lost the ability to listen in. Johnston County asked the AG whether state law forced it either to provide real-time monitoring access or to start recording radio traffic it was not already recording.
Senior Deputy AG James Coman and Special Deputy John Aldridge answered no on both questions.
On real-time monitoring. The Public Records Act in G.S. § 132-1 defines public records to include sound recordings "made or received" in the transaction of public business. The key phrase is "made or received." A radio communication that is never recorded is never a record. The Act gives the public the right to inspect records that exist (G.S. § 132-6), not the right to create new records by listening in to live transmissions. Nothing in the statute compels a government to provide real-time access to communications.
On a duty to record. G.S. § 132-6.2(a) expressly says: "nothing in this section shall be construed to require a public agency to respond to a request for a copy of a public record by creating or compiling a record that does not exist." If a public agency voluntarily creates a record on request, it may charge for that service. But the agency has no duty to start recording communications it had chosen not to record. The Poole case, News and Observer v. Poole, 330 N.C. 465 (1992), made clear that existing records were subject to inspection, but the AG drew a clear line: the Act applies to records, not to communications a county chooses not to capture.
The AG also confirmed that Johnston County's existing practice (recording all 911 calls and dispatch channel traffic, keeping the recordings for at least 30 days) met the 911 communications retention requirements of G.S. § 132-1.4(c)(4) and (i). Once the county chose to record, those recordings became public records and were subject to inspection and copying. The county's voluntary recording did not change the underlying rule that the Act does not require recording in the first place.
Currency note
This opinion was issued in 2002. 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 intersection of public records law and emergency communications has continued to evolve. Anyone today demanding or producing radio recordings should consult current G.S. § 132-1, the current G.S. § 132-1.4 911 retention rules, and any recent appellate decisions before relying on the conclusions here.
Background and statutory framework
The 800 MHz transition. During the late 1990s and early 2000s, many North Carolina counties moved from open analog radio systems to trunked digital 800 MHz systems for emergency communications. The digital systems offered better coverage and channel utilization, plus encryption capability for sensitive traffic. Scanner enthusiasts and journalists lost easy real-time access to dispatch traffic. Some members of the public believed the change was deliberately aimed at reducing transparency. The AG opinion addressed the legal status of that change.
The "made or received" phrase in G.S. § 132-1. The statute lists categories of materials that count as public records "made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions." Sound recordings are explicitly within the list. But "made or received" governs. If a recording is never made, there is no public record. The 2002 opinion read that phrase as carrying real work, not as boilerplate.
G.S. § 132-6.2(a) and the no-creation rule. This subsection, added by the 1995 Open Government Act, settled the question of whether agencies have to generate records on demand. The answer is no. Records that exist must be inspected; records that don't exist need not be invented. The AG applied this directly to live radio transmissions: a real-time monitoring feed would be a kind of synthetic record-creation that § 132-6.2(a) explicitly does not require.
G.S. § 132-1.4 and 911 retention. Special retention rules apply to 911 call recordings. Subsections (c)(4) and (i) of § 132-1.4 set minimum retention periods and permit specific disclosure framing for 911 calls. Johnston County's 30-day retention practice complied. The opinion did not analyze every aspect of 911 records law, only confirmed Johnston County's existing practice as sufficient.
The advisory opinion caveat. The opinion noted at the end that it was an "advisory opinion" that had not been reviewed and approved as a formal AG Opinion. That distinction matters in North Carolina practice: formal opinions go through the AG's full review process and have higher persuasive value than advisory letters from individual sections. Even so, advisory opinions are routinely cited and relied on by counties, municipalities, and litigants.
Common questions
Q: Could a journalist successfully sue a county to force it to record radio traffic?
A: Based on this opinion, no. The Public Records Act creates rights with respect to records that exist; it does not create a right to compel record-making. A lawsuit framed as a public records claim would fail under G.S. § 132-6.2(a). A separate statute or constitutional theory might support a different framing, but the AG identified none.
Q: Did the opinion mean a county could destroy radio recordings to avoid producing them?
A: No. The opinion did not endorse destruction of existing records. The 911-specific retention rules in G.S. § 132-1.4 imposed minimum retention periods. General records-retention obligations under DCR rules and the Public Records Act forbid destruction of existing records outside an authorized schedule. The opinion addressed the upstream question of whether records had to be created in the first place.
Q: What if a county did record radio traffic but encrypted it so the public could not understand the content?
A: The 2002 opinion did not directly address encrypted recordings. The logic would suggest the recording is a public record once made, and the county might be obligated to produce the decrypted content if technically feasible, but specific encryption-and-disclosure questions would need fresh analysis.
Q: Could a county provide live monitoring voluntarily?
A: The opinion explicitly said the decision rested with the county. A county that wanted to provide real-time public monitoring could do so. The opinion only addressed whether the county was required to.
Citations
Statutes:
- N.C.G.S. § 132-1 (definition of public records, including sound recordings; "made or received" trigger)
- N.C.G.S. § 132-1.4(c)(4), (i) (911 communications records retention)
- N.C.G.S. § 132-6(a) (inspection of public records in custodian's custody)
- N.C.G.S. § 132-6.2(a) (no obligation to create or compile records that do not exist)
Cases:
- News and Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992) (existing records subject to inspection)
Source
Original opinion text
I. Is a local government, such as Johnston County, required by the North Carolina Public Records Act, or any other North Carolina Statute, to provide the public the means to monitor its 800 megahertz radio communications, or otherwise provide "real time" access to these communications?
No, North Carolina law does not require a governmental entity to provide the public a means to monitor its 800 megahertz radio communications.
Public records, as defined by N.C.G.S. § 132-1 means, "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 of North Carolina government or its subdivisions." (emphasis added). North Carolina G.S. § 132-6(a), provides, "Every custodian of public records shall permit any record in the custodian's custody to be inspected and examined at reasonable times and . . . shall, as promptly as possible, furnish copies thereof on payment of any fees as may be prescribed by law." (emphasis added). Materials falling within the definition of public records in the Public Records Act must be made available for public inspection. News and Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992). Logically therefore, for a radio communication to be a sound recording (and therefore subject to the Public Records Act), the communication must first be recorded or in some other manner preserved.
Nothing in our Public Records Act requires a governmental agency to provide the public with the means to create a record where such a record is not first created by the agency. In the absence of such a requirement, the decision to provide or not provide the opportunity to monitor communications rests with the county. However, if such information is recorded and comes into the custody of the agency in the carrying out of its governmental duties, the public is then conferred the rights of examination set forth in Chapter 132.
II. Is Johnston County required by the North Carolina Public Records Act, or any other North Carolina Statute, to record any communications other than those the County is currently recording as described above?
No. North Carolina G.S. § 132-6.2(a) provides that, "nothing in this section shall be construed to require a public agency to respond to a request for a copy of a public record by creating or compiling a record that does not exist." If a public agency, as a service to the requester, voluntarily elects to create or compile a record, it may negotiate a reasonable charge for this service with the requester. . ." Therefore, to the extent Johnston County does not record the communications transmitted over the 800 megahertz radios, we find nothing in Chapter 132 which would require the agency to begin such recordings.
Johnston County's emergency management system currently records all telephone calls received by its "911" communications center and all dispatch channels. Such tape recordings are then maintained for at least 30 days. The "911" communication records retention criteria set out in N.C.G.S. §§ 132-1.4(c)(4) and (i) appear to be met. We are aware of no other recording requirements.
This is an advisory opinion. It has not been reviewed and approved in accordance with the provisions for issuing a formal Attorney General's Opinion.
Very truly yours,
James J. Coman
Senior Deputy Attorney General
John J. Aldridge, III
Special Deputy Attorney General
JJC/pa