By Dale Harrison, Sunshine Center: The American public becomes quite agitated when a public servant considers himself or herself “above the law” or the ethical obligations of public office. Such transgressions have done much to erode our confidence in the American system. It is a narcissistic view that has brought down a U.S. president and, more recently, governors from Illinois to New York (and threatens the current governor of the latter). It further continues to severely stain the service record of countless former officials, including the former chief executive of our own state.
And it is particularly disturbing when the very individuals who swear to enforce the law on a daily basis treat themselves as above the law. Unfortunately, such a stance is not at all uncommon among some law enforcement agencies across North Carolina.
At the Sunshine Center, one way we serve the North Carolina Open Government Coalition is by answering calls from citizens, journalists, public servants and others about access. Whether a particular law enforcement record is a public one is a common inquiry.
There are key parts of North Carolina’s Public Records Law that govern law enforcement records, but about which the general public has little information. Without that knowledge, the resulting environment can be one in which the limits of the law are stretched – or outright misrepresented. Records that ought to be public are routinely suppressed or delayed without justification. In the worst cases, some agencies claim none of the Public Records Law applies to them.
In fact, the statute applies to every law enforcement agency in the state – public or private. Simply because a police department operates within the bounds of a private institution does not exempt it from law. In North Carolina, the attorney general must commission all law enforcement agencies that enforce state law. This subjects all such departments to every facet of state law – not just enforcing it, but also upholding it.
A common misconception is that police departments at private universities are not subject to the Public Records Law. In fact, not only are they subject to North Carolina law, they are also governed by federal statutes. The Cleary Act, for example, requires daily and thorough keeping of law enforcement records that must be made public.
Many are also not aware that full details of any incident report filed with a law enforcement agency are public. This includes the “time, date, location and nature of a violation or apparent violation of the law reported to a public law enforcement agency.” It also includes the “name, sex, age and address of a complaining witness.”
This applies even in cases for which the alleged violation is a sexual assault, for instance (child sexual abuse is governed by a separate statute). However, there is a stipulation in the law that calls for temporarily withholding identifying information if release “is reasonably likely to pose a threat to the mental health, physical health, or personal safety of the complaining witness.” This can help protect witnesses when withholding the information is justified – yet it is an area of the law that is ripe for abuse.
Although the statute is clear that information may be “temporarily” withheld – and only when such harm is “reasonably likely” – some law enforcement officials errantly insist it can be applied more or less on a permanent basis. Such an interpretation is inconsistent with the letter and spirit of the law.
North Carolina Law is also clear about whether search warrants are public records – they are. Yet, when some law enforcement officials do not want to reveal a warrant to the public, they delay release of the record by slowing down the filing process. The law says a warrant is public when “returned by law enforcement agencies.” As soon as a warrant has been served and enforced, it is for all intents and purposes “returned.” Still, some law enforcement agencies delay filing the appropriate paperwork and insist the warrant is not yet public – even though it has been served and fully enforced.
Such tactics beg of the term “technicality,” which the public expects law enforcement officials to shun.
Some records are considered especially public by law and require a court order to seal, which includes search warrants and 911 calls. Clearly, the spirit – and even the letter – of the law is that these records are “the property of the people.”
The indignation of law enforcement toward members of the public who do not follow the spirit of the law – and “get off on a technicality” – should cut both ways. Tactics such as delaying the disclosure of search warrants or extending exclusions for complaining witnesses indefinitely are technicalities. The public deserves better from its law enforcement officials.
Dale Harrison is assistant director of the Sunshine Center at Elon University and an adjunct member of the faculty in the School of Communications.