Can the public get copies of private admonitions the NC Judicial Standards Commission has issued to judges, and the documents about the rule that authorizes private admonitions?

Plain-English summary

The News and Observer asked the NC Judicial Standards Commission for two categories of records: (1) all documents about how the Commission developed and adopted its rule authorizing private admonitions, and (2) all private admonitions the Commission has actually issued under that rule. The Commission's Executive Secretary asked the AG how to respond before answering.

Chief Deputy AG Edwin Speas analyzed the two categories under different statutory rules.

Records about the rule itself are public. The opinion says records held by executive and legislative branch officials are treated as public absent an express statutory exception and that the same construction ordinarily applies to judicial branch records. It cites News and Observer Publishing Co. v. Poole, G.S. 7A-109(a), and the judicial-records qualification in Virmani v. Presbyterian Health Services Corp. To the AG's knowledge, no statute exempted records about the development and adoption of Commission rules, so the AG treated those records as public.

Private admonitions depend on Commission procedure. The General Assembly addressed Commission records about individual judges separately, in G.S. 7A-377(a):

Unless otherwise waived by the justice or judge involved, all papers filed with and proceedings before the Commission, including any preliminary investigation which the Commission may make, are confidential, except as herein provided. After the preliminary investigation is completed, and if the Commission concludes that formal proceedings should be instituted, the notice and complaint filed by the Commission along with the answer and all other pleadings are not confidential.

The AG read this provision to make materials concerning a justice or judge confidential unless the statute says otherwise. The opinion identifies filing a complaint to institute formal proceedings as the event that changes the status of the specified records.

The AG understood the Commission's rules and practices to mean that a private admonition always precedes a complaint and cannot be issued after one is filed. If that understanding was correct, the AG concluded, private admonitions fall on the confidential side of G.S. 7A-377. The opinion does not direct the Commission to deny the newspaper's request.

Chief Deputy AG Speas noted that this pattern parallels how G.S. 126-22 treats personnel files of elected and appointed officials in the other two branches, as made applicable by G.S. 126-5(c1)(1), (2), and (3). NC's overall regime treats some categories of records as presumptively public and others as presumptively confidential.

Currency note

This opinion was issued in 2002. Check the current text of G.S. 7A-377 and the Commission's current rules before relying on its analysis, especially because the conclusion about private admonitions rests on the AG's understanding of Commission procedures at that time.

Background and statutory framework

The presumption matters. The opinion says courts construe statutes governing access to executive and legislative branch records liberally and deem those records public absent an express statutory provision to the contrary. It says the same rules of construction ordinarily apply to judicial branch records.

G.S. 7A-377 reverses that default for Commission materials concerning individual judges. As the AG read it, the statute makes those materials confidential unless an express exception applies. The opinion says filing a complaint to institute formal proceedings changes the status of the specified records.

Why the AG's qualification matters. The opinion does not independently establish the Commission's rules or practices for issuing private admonitions. Its conclusion about their confidentiality expressly assumes that the AG understood those procedures correctly.

Waiver. The statutory language quoted in the opinion begins, "Unless otherwise waived by the justice or judge involved." The opinion does not analyze a particular waiver or say what the Commission should release after one.

Common questions

Q: Are statistics about how many private admonitions the Commission has issued also confidential?

A: The opinion does not address aggregate statistics. It analyzes records concerning individual justices or judges, so it does not resolve a request for a statistical summary.

Q: What if the Commission's rule-making file contains drafts that reference specific cases or judges?

A: The opinion calls records about developing and adopting Commission rules public records, but it does not address a rule-making file containing information about an individual judge.

Q: What about court records about a judge's discipline, as distinct from Commission records?

A: The opinion cites G.S. 7A-109(a) for the rule that court records are public and cites Virmani for circumstances in which a court may shield records. It separately analyzes the Commission's papers and proceedings under G.S. 7A-377. It does not address a specific court disciplinary record.

Q: Has G.S. 7A-377 changed since 2002?

A: This 2002 opinion does not establish the statute's present wording. Check the current G.S. 7A-377 and Commission rules before applying its analysis today.

Citations

Statutes:

• G.S. 132-1 et seq. (NC Public Records Act)
• G.S. 7A-377 (Judicial Standards Commission confidentiality)
• G.S. 7A-377(a) (default rule for individual judge records)
• G.S. 7A-109(a) (court records are public)
• G.S. 126-22 (personnel files confidentiality, by analogy)
• G.S. 126-5(c1)(1), (2), (3) (applicability of personnel-file protections to elected and appointed officials)

Cases:

• News and Observer Publishing Co. v. Poole, 300 N.C. 465 (1992) (liberal construction in favor of public access)
• Virmani v. Presbyterian Health Services Corp., 350 N.C. 449 (1999) (narrow judicial-administration shielding power)

Source

• Landing page: https://ncdoj.gov/opinions/judicial-standards-commission-confidentiality-of-records/

Original opinion text

REPLY TO: Edwin M. Speas, Jr.
(919) 716-6400 FAX: (919) 716-0135

October 8, 2002

Deborah R. Carrington
Executive Secretary
State of North Carolina
Judicial Standards Commission
Post Office Box 1122
Raleigh, NC 27602

Re: Advisory opinion; Judicial Standards Commission; Confidentiality of Records; G.S. 132-1 et. seq.; G.S. 7A-377

Dear Ms. Carrington:

The Judicial Standards Commission has received a request from the News and Observer to examine and copy all documents relating to the development and adoption of the Commission's rule authorizing private admonitions and all private admonitions issued pursuant to that rule. The Commission has requested our advice before it responds to the News and Observer's request. We are pleased to share with the Commission our analysis of the pertinent statutes.

Our courts have established two general rules for construing the statutes providing for public access to records in the possession of executive and legislative branch officials: that the statutes will be construed to provide liberal access to those records and, correspondingly, that records will be deemed public records absent an express statutory provision to the contrary. See, e.g., News and Observer Publishing Co. v. Poole, 300 N.C. 465 (1992). These same rules of construction ordinarily also apply in determining access to records maintained by the judicial branch of government. See G.S. 7A-109(a) (Court records are public records). But see Virmani v. Presbyterian Health Services Corp., 350 N.C. 449, 463 (1999) (notwithstanding the public records act and G.S. 7A-109(a), a court "may shield portions of court proceedings and records from the public" where required for the "proper and fair administration of justice" or "where, for reasons of public policy, the openness ordinarily required for our government will be more harmful than beneficial.")

To our knowledge, there is no statute exempting records pertaining to the development and adoption of the Commission's rules from the scope of the Public Records Act, G.S. 132-1 et. seq. Therefore, nothing else appearing the Commissions' records concerning the development and adoption of its rules are public records.

The General Assembly, however, has specifically addressed the confidentiality of the Commission's documents concerning individual justices or judges. G.S. 7A-377(a) provides in pertinent part:

Unless otherwise waived by the justice or judge involved, all papers filed with and proceedings before the Commission, including any preliminary investigation which the Commission may make, are confidential, except as herein provided. After the preliminary investigation is completed, and if the Commission concludes that formal proceedings should be instituted, the notice and complaint filed by the Commission along with the answer and all other pleadings are not confidential.

These provisions seem clear on their face. They reverse the ordinary rule that records are public records unless otherwise expressly provided and substitute the rule that materials in the Commission's possession concerning a justice or judge are not public records unless otherwise expressly provided. The event that triggers a change in the status of records from confidential to public has been plainly stated by the General Assembly: it is a decision by the Commission to institute formal proceedings against a justice or judge by the filing of a complaint. As we understand the Commission's rules and practices, a private admonition always precedes the filing of a complaint and in fact cannot be issued once the Commission files a complaint against a justice or judge. If our understanding of the Commission's procedures is correct, private admonitions fall on the confidential side of the line drawn by the legislature in G.S. 7A-377.

In closing, we would observe that the effect of G.S. 7A-377 on the confidentiality of the Commission's documents in most respects mirrors the protection of G.S. 126-22 for the "personnel files" of elected and appointed members of the legislative, judicial and executive branches, as made applicable to them by G.S. 126-5(c1)(1)(2) and (3).

Hopefully our advice will be helpful to the Commission as it responds to the News and Observer.

Very truly yours,

Edwin M. Speas, Jr.
Chief Deputy Attorney General

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