GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

S	1 

SENATE BILL 1075

Short Title:  SBI Subpoena Authority.	(Public)

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Sponsors: Senator Rand.

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Referred to:  Judiciary II/Election Laws

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May 4, 1995

A BILL TO BE ENTITLED
AN ACT TO PROVIDE ADMINISTRATIVE SUBPOENA AUTHORITY TO THE STATE BUREAU OF INVESTIGATION.
The General Assembly of North Carolina enacts:
Section 1.  Chapter 114 of the General Statutes is amended by adding a new section to read:
"§ 114-15.4.  Administrative subpoena authority.
(a)	Pursuant to regulations promulgated by the Attorney General, the Director of the State Bureau of Investigation and any Special Agent in Charge designated by the Director may, upon a determination that reasonable suspicion exists that a person who is a third-party keeper of records, may possess or may have care, custody or control of any books, records, papers, documents or other tangible things, or objects in any form which may be relevant to an active law enforcement investigation conducted by the State Bureau of Investigation, issue in writing and cause to be served upon the person, a subpoena requiring production of the materials at the place designated in the subpoena.  The subpoena shall:
(1)	Describe the materials to be produced with reasonably sufficient clarity to enable the materials to be identified; and
(2)	Prescribe a return date that provides a reasonable period of time within which the materials can be assembled and made available for inspection and copying.
(b)	A subpoena issued under this section may be served by any person designated in the subpoena to serve it.  Service upon a natural person may be made by personal delivery of the subpoena to him.  Service upon a domestic or foreign corporation, or upon a partnership or other business entity, may be made by delivering the subpoena personally or by certified or registered mail to an officer, partner, a managing or general agent, or any other officer authorized by appointment, or by law of North Carolina to receive service of process.  The affidavit of the person serving the subpoena shall be proof of service.  A subpoena issued for financial records shall also be signed and approved ex parte by a superior court judge.
(c)	In the case of neglect or refusal to obey a subpoena issued to and served upon any person pursuant to this section, the Director or his designee may file and serve upon the person a petition for an enforcement order.  The petition shall be filed in the superior court in the judicial district in which the investigation is pending, in which the subpoena was served, or in which the subpoenaed person or business entity carries on business or may be found.
Within 10 days after the service of a subpoena upon a third-party keeper of records, or at any time before the return date specified in the subpoena, whichever period is less, the third-party record keeper or person whose records are sought may file in superior court for the judicial district in which the subpoena was issued, a petition for an order modifying or setting aside a subpoena issued pursuant to subsection (a)	or a prohibition or disclosure issued pursuant to subsection (e).  The petition shall specify each ground upon which the petitioner relies in seeking relief.  Certification of nondisclosure pursuant to subsection (e) shall not be grounds for a petition to modify or set aside the subpoena.
Except as otherwise provided in this section, the superior court in which a petition is filed pursuant to this subsection, has jurisdiction to hear and determine the matter so presented, and to enter such order as may be required to effectuate the provision of this section.  The petition may be heard and an order entered by a superior court judge for the district in which the petition was filed.  Any failure to obey the order of the court may be punished as contempt thereof.  Any petition filed or order entered relating to a subpoena issued and served with certification of nondisclosure pursuant to subsection (e)	shall be under seal.
Any person served with a subpoena issued pursuant to this section shall proceed to assemble the materials requested and shall be prepared to produce them on the date and at the place specified in the subpoena.
(d)	Except as expressly provided in this section, nothing in this section shall supersede the provisions of any other law of North Carolina or of the United States that regulates access to materials by state agencies.
Nothing in this section or in any other statute or rule shall be deemed to prohibit the use of materials or the information contained therein, obtained pursuant to this section, in any investigation or proceeding.
(e)	Notwithstanding any other provision of law, no person or business entity served with a subpoena issued pursuant to this section, or their representative, shall disclose to any other person the existence of such subpoena for a period of 90 days, upon certification by the Director of the State Bureau of Investigation or a Special Agent of the rank of Assistant Special Agent in Charge or above, designated by the Director, that the materials being sought may be relevant to a legitimate law enforcement inquiry and there is reason to believe that such disclosure may result in:
(1)	Endangering the life or physical safety of any person;
(2)	Flight from prosecution;
(3)	Destruction of or tampering with evidence;
(4)	Intimidation of potential witnesses;
(5)	Defeating any remedy or penalty provided for violation of the laws of North Carolina or the United States; or
(6)	Otherwise seriously jeopardizing an investigation.
The period of nondisclosure may be renewed for additional 90-day periods following recertification pursuant to this subsection.
Nothing in this subsection shall prohibit any person from disclosing the service of a subpoena pursuant to this section to an attorney for the purpose of filing a petition pursuant to subsection (c).
Any third-party record keeper, agent or employee thereof, who, in good faith reliance on a certification of nondisclosure pursuant to this section, produces any materials and does not disclose such production to the subject of the records, shall not be liable to any customer or other person for such nondisclosure."
Sec. 2.  This act is effective upon ratification.