While you were sleeping: North Carolina legislators restrict access to public records
Posted June 29, 2020 9:45 a.m. EDT
Updated July 29, 2020 9:55 a.m. EDT
While North Carolinians were sleeping early Friday morning, the General Assembly swiftly passed a bill that would shield death-investigation records from the public.
State officials say the provision merely clarifies current public records law and makes it easier for the Office of the Chief Medical Examiner to obtain law enforcement investigation records. But it could have much wider implications.
Senate Bill 168, which was requested by the Department of Health and Human Services and includes technical revisions to DHHS-related laws, passed the House and Senate nearly unanimously with little-to-no discussion. It now awaits the governor’s signature.
Gov. Roy Cooper’s press office did not respond to an inquiry Friday on whether he would sign the bill.
The move, which was intended to shield death investigations by law enforcement from becoming public record, comes one month after Minneapolis Police Officer Derek Chauvin knelt on George Floyd’s neck for nearly nine minutes, killing him.
Under North Carolina state law, deaths that occur in law enforcement custody, prison or jail are among the unnatural or unexpected deaths that must be reported to a county medical examiner.
If the death is under medical examiner jurisdiction, an investigation is launched. Any related records, including law enforcement investigations, are then passed to the Office of the Chief Medical Examiner. When those investigative records, which are exempt from public records law, leave law enforcement hands they become public.
SB 168 would change that.
The bill would mandate death investigation records remain confidential when they reach the medical examiner.
“It’s just really important that the public knows – that everybody has the ability to know – what’s going on in our prisons and our jails just to ensure that everybody is doing the job that they’re supposed to be doing,” said Mary Pollard, executive director of North Carolina Prisoner Legal Services. “What is the reasoning behind the bill? What’s the problem they’re trying to solve with this? Don’t we want to err on the side of transparency for the public and the press?”
The provision also maintains that records considered public remain accessible when passed to the medical examiner. Death certificates, autopsies and toxicology reports, for example, are currently public under state law. It’s unknown whether SB 168 could change that.
“I think a key piece of this is it's really looking at situations where it's a record that already has a level of confidentiality when it's with another entity, and to my knowledge law enforcement is the only entity,” said Matt Gross, assistant secretary for government affairs for DHHS.
State officials maintain this language, which was originally included in a 2019 bill, was not meant to shroud death records, but merely clarify that confidential records remain so. The 2019 bill stalled in the Senate and the language was moved to House Bill 1214 this year, which also stalled, until it was moved to SB 168.
“My understanding is it just streamlines what is confidential,” said Rep. Josh Dobson, a Republican from McDowell County, who was responsible for the language that was passed as part of SB 168. “It doesn’t change the status of confidentiality.”
Change sparked by law enforcement
North Carolina Chief Medical Examiner Michelle Aurelius said the provision will help make law enforcement feel more comfortable giving her office information.
“This isn't anything new,” Aurelius said. “The protection isn't different, isn't changed, but it's a fail-safe protection that reassures our partners that once they provide us with information and records that they continue to be protected when they're in our custody.”
Because of the current loophole, Aurelius said, law enforcement officials have been more hesitant to share the death records needed to determine cause of death with medical examiners. Officials also said the reluctance to share records slows down the process.
“There have been barriers in the middle of the night to get information on the front lines for those who are working to try to determine cause and manner of death and medical examiner jurisdiction,” Aurelius said.
Aurelius could not cite one specific case in which her office was unable to obtain a record but, when pressed, Aurelius said this happens around 10 times a year. Her office investigates thousands of deaths every year, and medical examiners have the power to subpoena law enforcement agencies for records.
“This is bad public policy for the public and the press to not get this kind of information,” said Forsyth County attorney Michael Grace.
Grace’s law firm represents the estate of John Elliott Neville, 57, who died in December three days after being admitted to the Forsyth County jail. Law enforcement officials said he had a medical emergency within the jail and died at a hospital.
The State Bureau of Investigation has finished an investigation, The News & Observer reported, but officials are so far withholding most information about the details of Neville’s death.
Pollard, with NC Prisoner Legal Services, cited a case she worked on where an inmate died in state custody as another example of a potential obstacle the new law could raise in accessing information about in-custody deaths.
“Michael Kerr who died at Alexander Correctional in 2014, he died of thirst. He’d been shackled in his cell for five days,” Pollard said. “If the medical examiner’s records had been shielded from public view in that case, would it really have been investigated and come to light the way it needed to?”
This story was jointly reported and edited by Kate Martin, of Carolina Public Press; Lucille Sherman and Jordan Schrader, of The News & Observer; and Nick Ochsner, of WBTV.