Are records the NC Secretary of State gathers to refer apparent lobbying violations to the Attorney General confidential criminal-investigation records?
Plain-English summary
The Chief Deputy Secretary of State asked the AG whether records the Department of the Secretary of State (DSOS) obtained and produced solely to report apparent lobbying-law violations to the Attorney General fell within § 132-1.4's criminal-investigation exception to the Public Records Act. The AG said no, as a general rule, under the law as it then stood. The reasoning rested on the threshold definition.
§ 132-1.4(a) makes records of criminal investigations conducted by "public law enforcement agencies" or records of criminal intelligence compiled by such agencies non-public. § 132-1.4(b) defines a public law enforcement agency as "any State or local agency, force, department, or unit responsible for investigating, preventing, or solving violations of the law." The AG asked whether the Secretary of State qualified when making lobbying-violation referrals.
Under the version of § 120-47.10 then in force, no. That statute provided:
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.
The text put investigation in the AG's hands and prosecution in the district attorney's hands. The Secretary's role was limited to reporting. The Secretary was not investigating violations. So the Secretary was not a public law enforcement agency for purposes of § 132-1.4. The records DSOS gathered to make a referral were therefore public.
The AG also flagged the coming change. Effective January 1, 2007, §§ 120-47.7B and 147-54.39 would expand the Secretary's powers to include subpoenas and subpoena duces tecum for legislative and executive branch lobbying investigations. The same statutes would expressly classify the Secretary's lobbying-investigation records as records of criminal investigations under § 132-1.4. The AG cited State v. Jones, 359 N.C. 832, 616 S.E.2d 496 (2005), and Brown v. Flowe, 349 N.C. 520, 507 S.E.2d 894 (1998), on harmonizing in pari materia statutes. The conclusion was that the 2007 amendments were on the horizon but did not yet control the 2006 question. Under current (2006) law, the records were public.
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 2007 lobbying-law amendments the AG previewed (subpoena power, criminal-investigation classification for DSOS records) took effect. The Secretary of State now has independent investigation authority over lobbying violations, and lobbying-investigation records are confidential under § 132-1.4. The 2006 analysis remains useful for historical context and for understanding the pre-2007 regime.
Common questions
Q: At the time of the opinion, who actually investigated lobbying violations?
A: The Attorney General. The Secretary of State only made referrals. The DA in Wake County prosecuted.
Q: Why did the Secretary's records become confidential after 2007?
A: The 2007 amendments gave the Secretary subpoena power, putting the Secretary in the role of investigator. The statutes also expressly classified DSOS lobbying-investigation records as criminal-investigation records under § 132-1.4.
Q: Did this opinion mean all DSOS records were public?
A: No. The opinion answered narrowly: records gathered to make a lobbying referral under the then-current § 120-47.10 were not § 132-1.4 criminal-investigation records, so the general Public Records Act rule of disclosure applied.
Q: What was the in pari materia harmonization?
A: When multiple statutes address one subject, courts read them together (Brown v. Flowe) to give effect to all. Here the AG read the current § 132-1.4, the current § 120-47.10, and the soon-effective §§ 120-47.7B and 147-54.39 together, concluding that the legislature created a future regime in which DSOS would investigate and its records would be confidential, but had not yet created such a regime as of the 2006 opinion date.
Background and statutory framework
The two halves of the framework:
- Public Records Act exception (§ 132-1.4). Carves out criminal investigation and intelligence records of "public law enforcement agencies." Defines law enforcement agency by function (investigating, preventing, or solving violations).
- Lobbying statutes (§ 120-47.10 as of 2006). Secretary of State refers apparent violations. AG investigates. DA prosecutes.
The interpretive principle was the standard rule from Times-News Publishing Co. v. State, 124 N.C. App. 175, 474 S.E.2d 450 (1996): the Public Records Act gives public access to all public records absent a specific statutory exemption. The Secretary's referral records had no statutory exemption in 2006. They were therefore public.
The 2007 amendments the AG previewed:
- §§ 120-47.7B and 147-54.39 added subpoena and subpoena duces tecum authority for DSOS.
- The same statutes added a provision that DSOS investigation records would be considered criminal-investigation records under § 132-1.4.
The opinion was signed by Chief Deputy Attorney General Grayson Kelley, Senior Deputy Attorney General Reginald L. Watkins, and Assistant Attorney General Diane G. Miller.
Citations
- N.C. Gen. Stat. § 120-47.7B (2007 DSOS subpoena power, legislative branch lobbying)
- N.C. Gen. Stat. § 120-47.10 (2005 lobbying referral)
- N.C. Gen. Stat. § 132-1 (Public Records Act)
- N.C. Gen. Stat. § 132-1.4 (criminal investigation records exception)
- N.C. Gen. Stat. § 147-54.39 (2007 DSOS subpoena power, executive branch lobbying)
- Times-News Publishing Co. v. State, 124 N.C. App. 175, 474 S.E.2d 450 (1996), disc. review denied, 345 N.C. 645, 483 S.E.2d 717 (1997)
- State v. Jones, 359 N.C. 832, 616 S.E.2d 496 (2005)
- Brown v. Flowe, 349 N.C. 520, 507 S.E.2d 894 (1998)
Source
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 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