North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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Reply to: John J. Aldridge, III Law Enforcement Liaison Section

(919) 716-6725 Fax: (919) 716-6760

January 22, 2002

VIA FIRST CLASS MAIL

Mr. J. Mark Payne Johnston County Attorney PO Box 1049 Smithfield, NC 27577

RE: Advisory Opinion: Public Records and Radio Communications,

N.C.G.S. Chapter 132

Dear Mr. Payne:

We are writing in response to your December 17, 2001 letter requesting our opinion as to whether Johnston County must provide public access to non-recorded radio communications and whether there is an obligation to record such communications. We are happy to respond.

The pertinent facts, as stated in your letter, are that Johnston County has purchased new 800 megahertz radios for use by Johnston County rescue crews and law enforcement personnel. These radios will provide communications between emergency personnel and their dispatch center, between “911” communication centers and various county personnel, and among personnel in the field. These 800 megahertz radios cannot be monitored over standard police band scanners. This feature of the 800 megahertz radios was considered desirable by the county for public safety and health reasons. It keeps criminal suspects from listening in on police communications and allows confidential medical information to be readily transmitted.

Initial emergency calls are transmitted in standard frequencies and can be monitored by common police scanners. It is the practice in Johnston County to tape record all telephone calls received by the “911” communication center and record all dispatch channels. All tape recordings of such communications are retained for at least 30 days and are treated as public records. The County does not record other channels, such as tactical channels or officer to officer transmissions.

Members of the media have expressed an interest in gaining access to the 800 megahertz radio communications as they are being transmitted, and an interest in tape recording such communications. This interest has therefore prompted the two questions which form the basis of your request letter. I will restate your questions as presented and our answers will follow.

Mr. J. Mark Payne January 22, 2002 Page 2

I. Is a local government, such as Johnston County, required by the North Carolina Public Records Act, or any other North Carolina Statute, to provide the public the means to monitor its 800 megahertz radio communications, or otherwise provide “real time” access to these communications?

No, North Carolina law does not require a governmental entity to provide the public a means to monitor its 800 megahertz radio communications.

Public records, as defined by N.C.G.S. § 132-1 means, “All 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.” (emphasis added). North Carolina G. S. § 132-6(a), provides, “Every custodian of public records shall permit any record in the custodian’s custody to be inspected and examined at reasonable times and . . . shall, as promptly as possible, furnish copies thereof on payment of any fees as may be prescribed by law.” (emphasis added). Materials falling within the definition of public records in the Public Records Act must be made available for public inspection. News and Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992). Logically therefore, for a radio communication to be a sound recording (and therefore subject to the Public Records Act), the communication must first be recorded or in some other manner preserved.

Nothing in our Public Records Act requires a governmental agency to provide the public with the means to create a record where such a record is not first created by the agency. In the absence of such a requirement, the decision to provide or not provide the opportunity to monitor communications rests with the county. However, if such information is recorded and comes into the custody of the agency in the carrying out of its governmental duties, the public is then conferred the rights of examination set forth in Chapter 132.

II. Is Johnston County required by the North Carolina Public Records Act, or any other North Carolina Statute, to record any communications other than those the County is currently recording as described above?

No. North Carolina G. S. § 132-6.2 (a) provides that , “nothing in this section shall be construed to require a public agency to respond to a request for a copy of a public record by creating or compiling a record that does not exist.” If a public agency, as a service to the requester, voluntarily elects to create or compile a record, it may negotiate a reasonable charge for this service with the requester. . .” Therefore, to the extent Johnston County does not record the communications transmitted over the 800 megahertz radios, we find nothing in Chapter 132 which would require the agency to begin such recordings.

Mr. J. Mark Payne January 22, 2002 Page 3

Johnston County’s emergency management system currently records all telephone calls received by its “911” communications center and all dispatch channels. Such tape recordings are then maintained for at least 30 days. The “911” communication records retention criteria set out in

N. C. G. S. §§ 132-1.4(c)(4) and (i) appear to be met. We are aware of no other recording requirements.

This is an advisory opinion. It has not been reviewed and approved in accordance with the provisions for issuing a formal Attorney General’s Opinion.

Very truly yours,

James J. Coman Senior Deputy Attorney General

John J. Aldridge, III Special Deputy Attorney General

JJC/pa