North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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September 19, 1977 Public Records, Tax Supervisor's Office; Ad Valorem Tax Appraisal Cards and Records; Right of Public To Reproduce Same Through Private Duplicating Machinery; G.S. 105-132; G.S. 105-259; G.S. 105-289; G.S. 105-296(h)

Subject:

 

Requested By: Fred Folger, Jr. County Attorney Surry County

 

Question: Must the Tax Supervisor allow an individual to enter his office and erect therein personal duplicating equipment with which to reproduce tax appraisal cards and other similar records?

 

Conclusion: No.

 

G.S.
132-6 provides in pertinent part that, "(e)very person having custody of public records shall permit them to be inspected and examined at reasonable times and under his supervision by an person, and he shall furnish copies thereof on payment of fees as prescribed by law."
G.S.
132-9 provides in pertinent part that, "(any) person who is denied access to public records for purposes of inspection, examination or copying may apply to the appropriate division of the General Court of Justice for an Order compelling disclosure . . .".

A tax supervisor is appointed by the County Board of Commissioners and has general charge of the listing and appraising of all property in the county. G.S. 105-294. Manifestly, he is a "public official" within the meaning of G.S. 132-6, and papers and documents related to the listing and appraisal of property received by him constitute public records. 43 N.C.A.G. 274. They are, therefore, subject to reasonable public "inspection" and "examination" unless precluded therefrom by other statutory provisions.

Three such statutes are G.S. 105-289(e), G.S. 105-296(h), and G.S. 105-249. Under G.S. 105-289(e), the Department of Revenue may furnish to the tax supervisor any information contained in any tax report furnished to the Secretary of Revenue, but it is provided therein that all such information shall not be made public. Concomitantly, G.S. 105-259 precludes State and county officials from disclosing information set forth on State tax reports and returns. Under G.S. 105-296(h), the tax supervisor may require additional information from business enterprises, e.g., inventories, statements of assets and liabilities, etc., but such elicited information "shall not be open to public inspection."

Besides these explicit statutory restrictions upon the right of the public to certain information, implicitly there remain other restraints. The tax supervisor's offices is a business office, and where the sheer number of public inspections and examinations substantially impairs the orderly and efficient conduct thereof, public accessibility may be reasonably curtailed. The right of public inspection by one individual must be balanced with the rights and duties of the tax supervisor's office, as well as with the rights of other members of the general public.

Apparently at the common law, there was no general right of inspection in all persons in respect to public documents or records. 76 CJS Records, Section 35, page 133, 66 Am Jur 2d, Records and Recording Laws, Section 15, page 351. Rather, an individual was required to possess some special interest in the document sought to be examined. In any early case, Newton v. Fisher, 98 NC 20, (1887), the plaintiff therein was denied by a Register of Deeds the right to make an abstract of all transfers of real and personal property for 1886. The Supreme Court denied the relief sought, and applied the special interest rule, holding that no one has the right "to make copies or abstracts of the entire record of the office, including those instruments in which the person so desiring to make abstracts, etc., is not at the time interested, but simply anticipates that he will at some time be interested, and abstracts of which he desires to make for merely speculative purposes." Newton at 23.

Newton predates considerably Chapter 132, and manifestly the special interest requirement addressed therein has not been carried forward in the present statutory scheme. Newton does however reference the "universal custom" of lawyers and others needing them to take "reasonable memoranda", and it is apparent that North Carolina early recognized the general rule that the right to inspect includes the right to make copies. "All authorities agree that at common law a person may inspect public records in which he has an interest or make copies or memoranda thereof." 76 CJS Records, Section 35, page 133. Fuller v. State, 154 Fla. 368, 17 SO. 2d 607, Re: Becker, 192 NY Supp. 754. In Clay v. Ballard, 87 Va. 787, 13 SE 262, the court concluded that as the right to take copies had not been expressly prohibited, it was a common law incident of the right to inspection.

Although it is well settled that the right to inspect includes the right to copy, Chapter 132 is silent as to whether the right to copy includes the right of an individual to elect to utilize his own reproductive equipment. Authorities from other jurisdictions divide: In Tobin v. Knaggs, 107 SW 2d 677, (1937), the Texas statute provided that books, records, and papers shall be open to inspection and examination by any citizen "who shall have the right to make copies of same." In permitting a citizen to utilize his own photographic equipment, the court noted that the statute didn't restrict as to any particular method or device, and found irrelevant the fact that emoluments of the office would perhaps be reduced if a citizen began selling copies. The court held that the office existed not for the purpose of raising revenue, except as fees are generated as an incident to its operation for public purposes.

Similarly, in Logan v. Mississippi Abstract Co., 200 SO. 716 (1941), the Clerk was by statute required to grant to a citizen access to any public record, and the right thereof "to examine it and make any copy, note or memorandum he desires to make of it." The court observed that conditions change, and that new and improved devices are invented. It held, "The word copy in the statute includes photographic copy." Logan at 720.

In People v. Peller, 34 Ill. App. 2d 372, 181 NE 2d 376, the court also approved the right of an individual citizen to utilize private photographic equipment, and observed:

"Modern photography is accurate, harmless, noiseless and time saving. It does nothing more than capture that which is seen with the naked eye. Neither the defendants nor the public can be harmed by the reproduction of the records exactly as they exist. The fact that more modern methods of copying are devised should not lessen the basic right given under the common law." Peller at 378.

New Jersey, and Vermont however do not permit private citizens to photocopy by use of their own equipment public records. Thus in Moore v. County of Mercer, 186 A 2d 676, (1962) the New Jersey court was concerned with the possible destruction or mutilation of public records were private individuals permitted the option of utilizing personal, untested, duplicating equipment. It held at 678:

"Employment of mechanical contrivance to produce a copy could subject the document to the possibility of spoilage or destruction during process of copying, a danger absent in transcribing the contents of a document by hand." . . . "The distinction between manual copying and machine copying inheres solely in the method of accomplishing the common law right to obtain a copy. It bears no relationship to the existence to the right itself."

A Vermont court in Matte v. City of Winooski, 271 A 2d 830 (1970), refused to permit a property taxpayer who was prosecuting an appeal in which he alleged that valuations on his property were unfair and unreasonable in comparison with valuations placed upon other comparable properties to photograph property tax cards. The Vermont court quoted extensively from Mercer, supra, in regard to the many different kinds of reproductive equipment, and the disruptive effect upon the administrative functions of the tax office which the presence of a number of such machines could create.

After quoting the Vermont statute which set the fees required for copies from officers "whose duty it is to . . . make copies of records," the Vermont Supreme Court observed at 832:

"It leaves the general matter of reproducing copies of the record, where it correctly belongs, -within the control of the official custodian. Since he is charged with the responsibility of maintaining and protecting the public documents entrusted to his care, it is within his discretion to prescribe how they are to be protected and to what mechanical processes they will be subjected."

Accountability by public officials to those they are appointed to serve is furthered by liberal accessability to public records. Accessability must not become an end in itself, however, and the paramount consideration is always preserving without damage or mutilation the integrity of public records. The duties and responsibilities of the office of tax supervisor do not include expertise in the various kinds, and operating characteristics of, the many types of duplicating and reproductive equipment. The tax supervisor is often required to be away from the business premises, and it also appears unlikely that his assistants will as a rule possess any greater mechanical expertise.

We believe, therefore, that the public's right to inspect, examine, and copy public records, does not include the right to copy same through the medium of personal reproductive equipment. It should be noted that our opinion is predicated upon the possible ill effects upon the records themselves and upon the problems of prior testing and continuous supervision. It is not based upon the disruptive influence a machine might affect in a small office, through size, noise, etc., nor is it based upon the possible inordinate costs attendant with its operation, as any public inspection may be restricted if disruptive of the public business, and we had assumed for the purposes of this opinion that no such external factors were present.

Having advised that an individual has no right to require that he be permitted to individually reproduce public records, we add that a tax supervisor possesses the inherent discretion as a public custodian to permit such mechanical reproduction if he possesses the requisite technical expertise as to particular copying equipment so as to satisfy himself as to its possible effect upon public records, and if the option to utilize same will be similarly availed to all possessing identical machinery. It remains, however, a decision of good faith discretion, and not a mandatory obligation.

Rufus L. Edmisten Attorney General

George W. Boylan Assistant Attorney General