When the NC Secretary of State gathers documents to report a possible lobbying violation, are those documents secret criminal investigation files or are they regular public records?
Plain-English summary
Chief Deputy Secretary of State Rodney Maddox asked the AG a narrow but important question: when the NC Secretary of State's office gathered documents about a potential lobbying violation and prepared to refer the matter to the Attorney General, were those documents subject to the Public Records Act, or did they fall into the criminal-investigation records exception under N.C.G.S. § 132-1.4?
The AG worked through the statutory definitions. Section 132-1.4 exempts only records of investigations conducted by "public law enforcement agencies," which the statute defines as agencies "responsible for investigating, preventing, or solving violations of the law." At the time of the opinion, the Secretary of State's only role under N.C.G.S. § 120-47.10 was to "report apparent violations of this Article to the Attorney General." The AG, in turn, would investigate, and the district attorney would prosecute. The Secretary of State's function was therefore strictly observational and referral, not investigative. That meant the office did not qualify as a "public law enforcement agency" for these specific records, and the criminal-investigation exception did not protect the files.
The AG flagged that this answer was about to flip. The General Assembly had passed amendments effective January 1, 2007, that would grant the Secretary of State subpoena and subpoena duces tecum powers to conduct lobbying investigations and that explicitly declared records accumulated during such investigations to be records of criminal investigations under § 132-1.4. So going forward (after January 1, 2007), the AG signaled that the same documents would likely be confidential. But under the law in effect on April 3, 2006, the documents were public.
The opinion is signed by Grayson Kelley (Chief Deputy AG), Reginald L. Watkins (Senior Deputy AG), and Diane G. Miller (Assistant AG).
Currency note
This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
The opinion itself flags the January 1, 2007 amendment (§§ 120-47.7B and 147-54.39) that reclassified Secretary of State lobbying-investigation records as criminal-investigation records. The opinion's specific holding applied to the pre-amendment period only. By 2026, North Carolina's lobbying enforcement and public records framework has gone through additional rounds of revision. Anyone applying this rule today should consult the current Chapter 120 (lobbying), Chapter 132 (public records), and any later AG opinions.
Common questions
Q: What is a "public law enforcement agency" under N.C.G.S. § 132-1.4?
A: The statute defines it as "any State or local agency, force, department, or unit responsible for investigating, preventing, or solving violations of the law." The status depends on the agency's authority and function, not its label.
Q: Did this opinion mean every Secretary of State record was public?
A: No. The opinion addressed only records gathered for the specific purpose of making a lobbying-violation report to the AG. Other records held by the Secretary of State are governed by their own statutory frameworks.
Q: Was this opinion overturned by the 2007 amendment?
A: Not retroactively. The 2007 amendment changed the law going forward. Records gathered before January 1, 2007 were still subject to the rule announced in this opinion. Records gathered after were subject to the new criminal-investigation classification.
Q: How does this compare with how courts treat law-enforcement records generally?
A: NC courts construe Public Records Act exemptions narrowly. The opinion cites Times-News Publishing Co. v. State for the principle that public records are accessible "unless either the agency or the record is specifically exempted from the statute's mandate." That narrow-construction principle is the backbone of the analysis.
Background and statutory framework
North Carolina's Public Records Act, Chapter 132, embraces a broad definition of public records and narrowly drawn exceptions. The criminal-investigation exception in § 132-1.4 protects records of active law-enforcement investigations to avoid compromising prosecutions or revealing investigative techniques.
The lobbying-enforcement framework in 2006 had a clean division of labor. The Secretary of State gathered information about lobbying activity (registration, reporting, payments). When the office spotted a potential violation, it would refer the matter to the AG, who would investigate. The Secretary of State had no investigatory power of its own at that time, which is why the AG concluded its referral files did not fit the criminal-investigation exception.
The 2007 amendment expanded the Secretary of State's role to include actual investigation, with subpoena power, and aligned the records framework accordingly. The AG opinion essentially documented the transition point.
Citations
- N.C.G.S. § 132-1 (Public Records Act)
- N.C.G.S. § 132-1.4 (criminal investigation records exception)
- N.C.G.S. § 120-47.10 (Secretary of State referral duty)
- N.C.G.S. §§ 120-47.7B, 147-54.39 (2007 amendments, Secretary of State investigatory powers)
- Times-News Publishing Co. v. State, 124 N.C. App. 175 (1996)
- State v. Jones, 359 N.C. 832 (2005)
- Brown v. Flowe, 349 N.C. 520 (1998)
Source
- Landing page: https://ncdoj.gov/legal-services/archived-opinions/
Original opinion text
April 3, 2006
Rodney S. Maddox
Chief Deputy Secretary of State
North Carolina Department of the Secretary of State
P.O. Box 29622
Raleigh, N.C. 27626-0622
Re: Advisory Opinion; Public Records Law, Criminal Records; N.C. Gen. Stat. § 132-1.4 (2005)
Dear Mr. Maddox:
This letter is in response to your request for an opinion whether records obtained and produced by the North Carolina Department of the Secretary of State (hereinafter "the Department") solely for the purpose of making a report of an apparent criminal violation under N.C. Gen. Stat. § 120-47.10, fall within the exception to the Public Records Act found in N.C. Gen. Stat. § 132-1.4. In our opinion, as a general rule, the records in your possession are not records of criminal investigations or intelligence and are a public record. In reaching this determination, we considered relevant statutes from the Public Records Act, as well as current and recent amendments to the lobbying laws.
Public records, as defined by N.C. Gen. Stat. § 132-1, mean "[a]ll 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."
The Public Records Act clearly permits public access to all public records in an agency's possession "unless either the agency or the record is specifically exempted from the statute's mandate." Times-News Publishing Co. v. State, 124 N.C. App. 175, 176, 474 S.E.2d 450, 451-52 (1996), disc. review denied, 345 N.C. 645, 483 S.E.2d 717 (1997); N.C. Gen. Stat. § 132-1 et seq. You inquire if the records in question are exempt from the Public Records Act under N.C. Gen. Stat. § 132-1.4. N.C. Gen. Stat. § 132-1.4(a) provides in part that "[r]ecords of criminal investigations conducted by public law enforcement agencies or records of criminal intelligence information compiled by public law enforcement agencies are not public records as defined by G.S. 132-1."
The threshold question therefore is to determine if the Department is a public law enforcement agency when it is reporting apparent violations of the lobbying laws under N.C. Gen. Stat. § 120-47.10. N.C. Gen. Stat. § 132-1.4(b) provides that a public law enforcement agency means "any State or local agency, force, department, or unit responsible for investigating, preventing, or solving violations of the law." After reviewing the current statutes that regulate lobbying and recent amendments to those statutes, we conclude that the Department is not a public law enforcement agency when it is making a referral of an apparent criminal violation under the current version of N.C. Gen. Stat. § 120-47.10.
N.C. Gen. Stat. § 120-47.10 provides:
The Secretary of State shall report apparent violations of this Article to the Attorney General. The Attorney General shall, upon complaint made to him of violations of this Article, make an appropriate investigation thereof, and he shall forward a copy of the investigation to the district attorney of the prosecutorial district as defined in G.S. 7A-60 of which Wake County is a part, who shall prosecute any person who violates any provisions of this Article.
It is apparent on the face of N.C. Gen. Stat. § 120-47.10 that the Attorney General is responsible for investigating apparent violations of the lobbying laws and that the district attorney is responsible for prosecuting any person who violates the lobbying laws. Currently, the function of the Department is limited to making a report of apparent violations of the lobbying laws to the Attorney General. Therefore, the Department is not a public law enforcement agency when it is performing that specific function.
Recently, the legislature amended the lobbying laws. Effective January 1, 2007, the Department's powers and duties will be expanded to include the authority to issue subpoenas and subpoena duces tecum as necessary to conduct investigations of violations of legislative branch lobbying and executive branch lobbying. N.C. Gen. Stat. §§ 120-47.7B and 147-54.39. Those enlarged powers are consistent with conducting investigations as contemplated under N.C. Gen. Stat. § 132-1.4. Additionally, the legislature has affirmatively provided that in addition to these new powers and duties, all records accumulated in conjunction with the Department's investigation of lobbying complaints shall be considered records of criminal investigations under N.C. Gen. Stat. § 132-1.4. N.C. Gen. Stat. §§ 120-47.7B and 147-54.39.
"The cardinal principle of statutory construction is to discern the intent of the legislature. In discerning the intent of the General Assembly, statutes in pari materia should be construed together and harmonized whenever possible." State v. Jones, 359 N.C. 832, 835-46, 616 S.E.2d 496, 498 (2005) (citations omitted). Furthermore, our courts have recognized that when multiple statutes address a single subject, their "task is to give effect, if possible, to all sections of each statute and to harmonize them into one law on the subject." Brown v. Flowe, 349 N.C. 520, 523-24, 507 S.E.2d 894, 896 (1998) (citations omitted).
Applying these well-established principles of statutory construction to the facts presented by your inquiry, we conclude that because the legislature created new statutory provisions that, effective January 1, 2007, specifically provide that the Department's investigation records of legislative branch lobbying and executive branch lobbying shall be considered records of criminal investigations, records obtained by the Department to report apparent violations under the current version of N.C. Gen. Stat. § 120-47.10 are public records.
We hope that this letter is responsive to your inquiry. Please feel free to contact us if you have any further questions regarding this issue.
Sincerely yours,
Grayson Kelley
Chief Deputy Attorney General
Reginald L. Watkins
Senior Deputy Attorney General
Diane G. Miller
Assistant Attorney General