We are the Sunshine Center of the North Carolina Open Government Coalition. If you are a records or meetings holder or someone seeking access to records or meetings, we hope this site will be a useful resource. Check out our educational resources about open government.
With very few exceptions, all records created or received by officials and employees while transacting official government business are public records and must be retained, stored, disposed of, and made available for inspection and copying in accordance with the law. This applies to records in officials’ and employees’ homes and on home or personal computers if the record pertains to government business. The public records law is primarily contained in N.C.G.S.132-1 through N.C.G.S. 132-10, which is on-line at: http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByChapter/Chapter_132.html.
Public records include paper and electronic documents (including emails and other electronic messages), photos, videos, maps, computer files, computer communications and voice mail messages. Unless the purpose and content of a record is personal in nature and not related to the transaction of local government business, then it is a public record and should be managed according to the Records Retention and Disposition Schedule (“Schedule”), if your governing board has adopted this Schedule. If your governing board has not adopted this Schedule, then you must retain all records about your government forever.
There are certain records that are exempted from the definition of public records, and there are certain public records that do not have to be disclosed.
NC local government public records and public information are the property of the people. Employees and officials are records custodians, and are responsible for retaining these records and making them available to the public when they request them.
The public official in charge of an office is designated to be the custodian of records for that office (N.C.G.S. § 132-2). Practically, each official and employee is responsible for retaining the public records in his or her possession. For example, if you work in a particular department and you send/receive emails about official government business, you’re responsible for retaining them for the appropriate retention period, unless your local government has established policies that direct others to be responsible for retaining them.
If your governing board has adopted the Records Retention and Disposition Schedule, then you may likely dispose of records after they’ve exceeded the retention period outlined in that document. However, we must retain all records that are subject to litigation, audits, or that have outstanding requests pertaining to them even after they’ve exceeded the retention period. You must keep these records until the outstanding action is resolved. And, in some local governments, accreditation agencies may require you to keep certain records for a longer period of time. Always work with your supervisor or legal staff if you have any questions.
If your governing board has not adopted the Records Retention and Disposition Schedule, then you must keep all records about local government business forever – you may not dispose of anything.
Refer to the Records Retention and Disposition Schedule, which describes the minimum retention period.
It's good to set aside time once a year for records management duties (making decisions about what files to keep and purge according to the Records Retention and Disposition Schedule).
Remember, records must be retained if there is an outstanding record request, court subpoena or court order, some state or federal law or grant requirement, if litigation is pending or threatened or if there is any other outstanding action pertaining to the record.
And, even if the record has surpassed the minimum retention period, if it’s an active record that you use in your duties, then keep it as long as it’s useful to you.
Emails and any other type of electronic messages are just as much “official” records as paper records. The content of the electronic message determines its record series status according to the Records Retention and Disposition Schedule. It’s a good practice to develop good electronic message folder systems to ensure easy retrieval of these messages, instead of keeping them in your inbox and sent box. As with your paper records, if an email is transitory, then you likely do not need to retain it once it no longer has value to you.
You should segregate confidential and protected electronic messages from others messages so you don’t inadvertently release them in response to a public records request.
Create electronic message file folders just as you would paper file folders. An electronic message file system should follow the same philosophy as a paper file system. For example, you may file general emails by calendar or fiscal years; you may develop subject folder systems, etc.
Transitory records are records that are ephemeral, temporary, or transient in nature and have only short-term administrative value.
Transitory records are public records, but because of their nature, they do not typically have to be retained. Transitory records include (but are not limited to) messages with short-term or no administrative value, such as many, but not all, voice mails, self-sticking notes, facsimile cover sheets that do not contain substantive information, and telephone messages. Transitory records are created primarily for the informal communication of information and not to perpetuate or formalize knowledge. Transitory records do not set policy, establish guidelines or procedures, discuss a local government business matter, discuss a decision, certify a transaction, or act as evidence of receipt. (Certified or registered mail return receipts that contain important information about the names of the sender/recipient and pertinent dates are not transitory.) Transitory records may be treated as having a reference or administrative value that ends when you no longer need the information in the record. Transitory records may be purged when their reference value ends unless there is some other reason that record should be retained, such as an outstanding record request, court subpoena or court order, some state or federal law or grant requirement, or if litigation is pending or threatened. However, if a record request is received for a transitory record before that transitory record has been purged, that transitory record must be disclosed.
If the governing board has adopted the Records Retention and Disposition Schedule, then after records have surpassed the retention period, we may dispose of them as allowed by N.C. Administrative Code, Title 7, Chapter 4, Subchapter M, Section .0510 (except those records that are the subject of litigation, audits or any outstanding actions):
We should shred paper records that contain confidential, protected or secure information with a crosscut shredder. We may recycle paper records that do not contain confidential, sensitive or secure information, as long as the contract with the recycling provider stipulates that recycled materials will not be resold as documents or records.
If the governing board has not adopted the Records Retention and Disposition Schedule, then you may not destroy any of your records.
We should not maintain government records on personal computers or devices. Maintain all government records on the local government computer/device. This will ensure that we’re never in a position of being asked to provide or search personal technology to satisfy a record request.
Likewise, it's best to maintain personal records on personal devices. If it's important to maintain a personal record on a government device for a brief period of time (and if the local government allows this), then create a separate folder for these personal records. Delete personal records when they’re no longer needed from the government issued device.
First, it’s helpful to adopt a public servant attitude and treat records requests as part of our jobs in local government. This is one part of our job that is required by state law, which elevates the importance of this job duty. Do not consider record requests as interruptions that prevent us from performing our other duties. Then, take the next step and let’s put the smile on our faces, which will also be heard in our voices. Let’s strive to provide excellent customer service when we’re asked for public records.
Second, notify the supervisor. It's possible that other employees and officials in the local government have received the same request. Good communication is critical to ensure everyone operates as efficiently as possible.
As a courtesy, we should respond promptly to the requesting party to let them know we’ve received the request. Ask the person any clarifying questions about the records sought. It's also helpful to ask if the person has made this request to other staff members as well. This will ensure everyone can be as efficient as possible. Advise the requesting party that we’ll search our records and get back with them by a certain date (and give them the date) to let them know any cost for providing those records (based on the format they've requested). Ask if they concur with this plan.
We can’t require the request to be made in writing (except that requests for databases may be required in writing). If it’s a complicated request, we may ask the requester to put it in writing to help us understand it. However, if the requester refuses to do so, then we must fulfill the request and ask clarifying questions to make sure we understand the request.
We can’t require the requester provide his/her name or other personal identifying information. Some local governments may request that persons requesting records complete a form (paper or online). It’s fine to ask someone to complete such a form, but we may not require it.
We can’t charge the requester for “inspecting” records.
For most record requests, we can’t charge more than actual cost to produce the record. For example, if it takes an employee one hour to produce the records, that employee may not charge for his/her time. That employee may charge the cost of the paper required for photocopying, the cost of the CD/DVD, etc. If the record request will require extensive local government resources (overtime, contractual services, etc.), then we should work with our supervisors and the person requesting the records to agree on decisions for moving forward.
Unless the record request only specifies emails/electronic messages, then we must search ALL of our records (including paper and electronic).
For emails/electronic messages, it's important to input the appropriate search criteria to make sure we’re providing, to the best of our ability, all records in our possession in response to a record request.
Let's use the following example. An employee gets a record request for all records in his/her possession from January 1 of current year through February 28 of current year pertaining to solid waste pick-up complaints.
If we have questions about any of our records being confidential, protected or secure or having information in them that may be confidential, protected or secure, we should contact our legal staff prior to releasing these records. (Protected records.)
A. If the requesting party has requested emails stored electronically, then we can provide them electronically according to email system.
B. If the requesting party has requested information in paper format, or if the records the person has requested are only in paper format, then we might consider one of the following options:
NC law states we must respond within a reasonable amount of time. Keeping in mind that this is one way we serve the public and it is a job duty required by law, we should make records requests a priority when we receive them. If it’s a simple request and we can accommodate it in a few minutes, then do so. If it’s a more complex request and it will take time and we have other high priority work, then develop an action plan showing when we can fulfill the request, and share this action plan with the supervisor and then with the requesting party. If the requesting party wants the information sooner, then that’s when we have the conversation with the supervisor about extensive resources that might be required to fulfill the request. Then we’d share information with the requester for his/her concurrence, including the cost to them of the extensive resources if they want the records in a shorter amount of time than what is reasonable.
We may have records that contain copyrighted material and are protected by copyright laws. If a record request is made for a record that is protected by copyright, then make the record available to the requester for inspection. If the requester requests a copy, then point out to the requesting party that the record contains copyrighted materials, but allow the requester to copy the record themselves. Government employees and officials should not copy records known to be copyrighted.
Once a draft document has been shared with another, it is a public record and is subject to public inspection. Inspection may be required for some uncirculated drafts. Consult with legal staff about the public record status of a draft document prior to denying inspection of that document.
To avoid misunderstandings that can sometimes arise from public circulation of discussion drafts, consider labeling each page of draft documents that you circulate to others with "DISCUSSION DRAFT ONLY."
The law permits local governments to charge a fee for reproducing a record that recovers the actual cost of duplicating the record. Some local governments may include these fees as part of their fiscal year budgets. An estimate of the charges should be given to the requester and the requester’s approval obtained prior to reproducing records.
In rare cases, providing public records may require extensive use of information technology resources or clerical and/or supervisory assistance. In these cases, the record custodian may assess a reasonable service charge based on the actual incurred costs. An estimate of the charges should be given to the requester and approval obtained prior to reproducing records.
It’s important to be consistent and equitable throughout our local government organization with the fees we charge for reproducing records. Do not pick charge different amounts on a person-by-person basis.
We may recover the cost of the CD/DVD.
We do not have to create a new record to satisfy a record request. Instead, we may respond that we have no record that satisfies the request.
Yes, under certain circumstances (i.e., the record may be protected, etc.). Always consult with legal staff before denying a record request.
A protected record is a record that is exempted from the definition of public records and a record for which there is statutory or other authority permitting or requiring that the information not be disclosed.
Protected records should not be disclosed, and in some cases must not be disclosed, without the permission of the official custodian or legal staff. Just as we have a duty to disclose public records, we have a duty to protect the privacy of protected records. In particular, a social security number must never be released as part of a public record. Make efforts not to include protected information and public information in the same record. Records that contain a mix of public records and protected records must be disclosed, but the protected information must first be removed (if on a separate page) or redacted (if on the same page with public information). When in doubt if a record is a protected record, consult with legal staff. Consulting with the attorney has advantages in the event we determine the record is protected and we do not disclose it, and there is a legal challenge.
Examples of records that are exempted from public records:
Examples of records protected from disclosure:
If a record subject to a record request is a protected record, we likely will not have to make that record available for inspection and copying. When in doubt if a record is a protected record, consult with legal staff. Consulting with the legal staff has advantages in the event we determine the record is protected and we do not disclose it, and there is a legal challenge.
In some cases, however, a public record will contain information that is protected, but the entire record is not protected. In those cases, the protected information should be deleted in a manner that shows that a deletion was made. For example, if the record is a paper record, then make a copy of the record, tape over the protected information with white correction tape, then use a black painter pen to completely mark over the tape. The marked up record should then be copied and the new redacted copy made available for inspection and copying.
If we are providing an electronic record that includes protected information that must be redacted, then consider saving the electronic document as a new file name, and from the new file, use the electronic "cut" feature to eliminate the protected text and show in the revised document where text has been "cut". It is the record custodian's responsibility to ensure that protected information remains protected.
The North Carolina General Assembly has declared it to be the public policy of North Carolina that the hearings, deliberations, and actions of public bodies be conducted publicly. (N.C.G.S. § 143-318.9) (Source of information: http://www.ncdoj.com/getdoc/e1447597-eb6d-44f4-9802-d10420bea7db/Open-Meetings-Q-A.aspx)
Groups that are required to hold their official meetings publicly ("public bodies") include government authorities, boards, commissions, committees, councils, or other bodies. The law applies to all these bodies of the State, or of one or more counties, cities, school administrative units, constituent institutions of the University of North Carolina, or other political subdivisions or public corporations in the State. These groups are public bodies if they have two or more members, if their members are elected or appointed, and if they exercise a legislative, policy-making, quasi-judicial, administrative, or advisory function. N.C.G.S. § 143-318.10(b) & (c) (Source of information: http://www.ncdoj.com/getdoc/e1447597-eb6d-44f4-9802-d10420bea7db/Open-Meetings-Q-A.aspx)
An official meeting is a meeting, assembly, or gathering together of a majority of the members of a public body for the purpose of conducting hearings, participating in deliberations, voting upon public business, or otherwise transacting public business. N.C.G.S. § 143-318.10(e) (Source of information: http://www.ncdoj.com/getdoc/e1447597-eb6d-44f4-9802-d10420bea7db/Open-Meetings-Q-A.aspx)
No. Only official meetings. An official meeting of a majority of the body's members -- in person or electronically -- to conduct a hearing, deliberate, take action or otherwise transact the public's business. And a court has said "deliberate" means to examine, weigh and reflect upon the reasons for or against a possible decision. If a body is only receiving information, that counts.
Conference calls are covered. A chat room meeting or other similar electronic communication would count as an official meeting. A message sent from one member of a body to all of the others would not -- it's like posting a message on a bulletin board. A gray area lies between those two examples. If the others were to reply to a message and then copy each other, and then more responses followed, the "conversation" may constitute an official meeting.
Yes. These meetings, in which the board can be informed about matters and discuss them but not take final actions, are less formal than regular meetings but are considered official meetings and are open to the public. Even if the board does nothing but receive information, the meeting is public.
Social gatherings are allowed, but boards are not permitted to use these events as an excuse to deliberate outside of the public eye. Meals that a board regularly takes together, for example, are considered official meetings, unless they are strictly social and no business at all is transacted.
Yes. However, the law also says a board must not essentially take action through these individual meetings.
Notice is required for all public meetings. The Open Meetings Law contains detailed procedures that public bodies must follow to give the public advance notice of their official meetings. Requirements differ depending on whether the official meeting is a regular meeting, a meeting other than a regular meeting, or an emergency meeting. N.C.G.S. § 143-318.12 (Source of information: http://www.ncdoj.com/getdoc/e1447597-eb6d-44f4-9802-d10420bea7db/Open-Meetings-Q-A.aspx)
Regular meetings are those held at a set time and location on a regular basis. The regular meeting schedule must be maintained in a central location. If the government entity has a website, the regular meeting schedule must also be posted on their website. A public body is not required to set a regular meeting schedule. If they do not set a regular meeting schedule, then their meetings would be considered special meetings.
To change the regular meeting schedule, a revised schedule must be filed at least seven days before the first meeting for which it applies.
Special meetings are official meetings that are not emergency meetings, recessed meetings or regular meetings. The law required boards give at least 48 hours of notice for special meetings, stating the date, time, place and purpose of the meeting. Notice must be posted on a government’s principle bulletin board, if it has one, or the door of the board's usual meeting place an. Notice must also be provided to everyone who has submitted a written request for notice (also known as the “sunshine list”) and placed on the government entity’s website if they have one.
Public bodies may call emergency meetings if there are generally unexpected circumstances that require immediate consideration by the public body. At an emergency meeting, the public body may consider only the business connected with the emergency circumstances. N.C.G.S. § 143-318.12(b)(3) (Source of information: http://www.ncdoj.com/getdoc/e1447597-eb6d-44f4-9802-d10420bea7db/Open-Meetings-Q-A.aspx)
It is possible that Town records may contain copyrighted materials for which employees are not aware of the copyright status. If it is possible that records provided by employees may include copyrighted materials, then the employee should use the following statement when releasing the records in response to a records request:
A government entity must notify all news media that has requested notice of meetings of emergency meetings. This notice may be provided by phone or the same communication method used to notify governing board members. Other than municipal government, there is no minimum time period for providing this notice, and practically, the meeting may occur as soon as the members can gather. Municipalities are required by law to provide six hours notice to governing board members.
A governing body may recess a meeting during the meeting itself (in open session) by stating the date, time and location of the recessed meeting. No additional notice is required for recessed meetings.
Every public body is required to keep full and accurate minutes of all official meetings (including closed sessions). Such minutes may be in written form or, at the option of the public body, may be in the form of sound or video and sound recordings.
NOTE: If a governing body’s minutes are maintained in video or sound recording format, it’s important to migrate the media as technology changes. For example, remember the VCR tapes some of us used to watch? How many of us now have the equipment to watch these old VCR tapes? Likewise, how many of us have the equipment to play eight-track tapes (or how many of us even know what they are)?
Any person may bring a civil court action against a public body for past violations or possible future violations of the Open Meetings Law.
If the person bringing a suit shows that the public body violated or is going to violate the Open Meetings Law, the court may issue an injunction. An injunction may prohibit a threatened violation of the law, or prevent past violations of the law from recurring. As with the Public Records Law, the Attorney General’s Office has no enforcement authority with respect to the Open meetings Law. Only a court may enforce this law. N.C.G.S. § 143-318.16(a)
Note: While the Attorney General’s Office may answer questions about open meetings’ issues, they do not have enforcement authority. Only a court may enforce this law. (Source of information: http://www.ncdoj.com/getdoc/e1447597-eb6d-44f4-9802-d10420bea7db/Open-Meetings-Q-A.aspx)
It’s also important to consider the non-legal ramifications. If a government official or entity violates the Open Meetings Law, they may lose the trust and confidence of the public they serve. And, they might end up as the lead story in their local media news.
The Open Meetings Law specifies several public agencies or organizations that are not subject to the law. For example, the term public body does not include (1) a meeting solely among the professional staff of the public body, or (2) the medical staff of a public hospital.
Further, this law does not apply to Grand and petit juries, the Judicial Standards Commission, and the Legislative Ethics Committee among others. N.C.G.S. §§ 143-318.10(c) & 143-318.18 (Source of information: http://www.ncdoj.com/getdoc/e1447597-eb6d-44f4-9802-d10420bea7db/Open-Meetings-Q-A.aspx)
The Open Meetings Law permits public bodies to exclude the public from certain portions of official meetings. These are referred to as closed sessions. The subjects that may be discussed and the actions that may be taken in closed sessions are listed specifically in the Open Meetings Law, and only these things may be considered during a closed session. N.C.G.S. § 143-318.11 (Source of information: http://www.ncdoj.com/getdoc/e1447597-eb6d-44f4-9802-d10420bea7db/Open-Meetings-Q-A.aspx)
The Open Meetings Law says that a public body may hold a closed session during one of its official meetings only when a closed session is required to prevent public disclosure of the following types of information: legally confidential information, honorary degrees, scholarships, prizes and awards, attorney-client discussions, location or expansion of businesses (including agreement on a tentative list of economic development incentives that may be offered by the public body in negotiations), contract negotiations, certain personnel matters, and criminal investigations, school violence response plans and anti-terrorism plans. N.C.G.S. § 143-318.11(a) (Source of information: http://www.ncdoj.com/getdoc/e1447597-eb6d-44f4-9802-d10420bea7db/Open-Meetings-Q-A.aspx)
A public body may hold a closed session only if it first begins an open official meeting after proper public notice. During the open part of the official meeting, the public body must make and adopt a motion to hold a closed session. In making the motion to hold a closed session, the public body must state which of the legally acceptable purposes it is relying upon to justify the closed session. N.C.G.S. § 143-318.11(a) (Source of information: http://www.ncdoj.com/getdoc/e1447597-eb6d-44f4-9802-d10420bea7db/Open-Meetings-Q-A.aspx)
The law requires "minutes" be kept that are "full and accurate" and a "general account" to let a person who wasn't there "have a reasonable understanding of what transpired." A "general account" is intended to provide some sort of record of the discussion that took place behind closed doors, whether action was taken or not. The government entity must make those minutes available for public inspections as soon as the reason for the closed session is no longer valid.
Yes, but the vote must be disclosed in the minutes of the closed session.
No. Permission to hold a closed session is simply permission to exclude the public; it is not authorization to prohibit those present from disclosing what occurred. However, it may be the expectation of those present at the closed session that they do not disclose what happened, as this may be considered frustrating the purpose of the closed session. A person present at a closed session who discloses what occurred at that meeting may lose the trust of his/her colleagues, which might damage future board working relationships.
The “sunshine list” is any member of the public (including the media) who requests in writing to receive public notice of meetings. The unit of government may not charge the media for public notices, but by law they must charge $10 per year for non-media individuals who wish to receive public notices by mail. The unit of government may not charge anyone who receives public notices by email.
All people and media have the right to attend official meetings of public bodies. N.C.G.S. § 143-318.10(a)
However, the Open Meetings Law does not give members of the public the automatic right to speak or participate in an official meeting.
In fact, if a person interrupts, disturbs, or disrupts an official meeting, the presiding officer may direct that person to leave the meeting. If that happens and the disruptive person refuses to leave, he may be charged with a misdemeanor. N.C.G.S. § 143-318.17
Note: There is a difference between public meetings and public hearings. Public hearings, which are mandated by statute, generally include a provision for public comment. The Open Meetings Law does not apply to public hearings. (Source of information: http://www.ncdoj.com/getdoc/e1447597-eb6d-44f4-9802-d10420bea7db/Open-Meetings-Q-A.aspx)
Additionally, state law requires county, municipal and school boards to provide for one period of public comment per month at a regular meeting (state law references 153A-52.1, 160A-81.1 and 115C-51). Outside of this requirement, citizens have a right to attend meetings and listen, but they do not have a right to talk to the public body or participate in its deliberations.
A public body may hold a meeting by conference telephone or other electronic means. If it does so, it has to provide a location and means for members of the public to listen to the meeting. The meeting notice should indicate where the public may listen. The public body may charge up to $25 to each listener to help pay for the cost of providing the location and listening equipment. N.C.G.S. § 143-318.13(a) (Source of information: http://www.ncdoj.com/getdoc/e1447597-eb6d-44f4-9802-d10420bea7db/Open-Meetings-Q-A.aspx)
Any person may photograph, film, tape-record, or otherwise reproduce any part of an official meeting required to be open. Radio and television stations are entitled to broadcast all or any part of an official meeting required to be open. N.C.G.S. § 143-318.14 (Source of information: http://www.ncdoj.com/getdoc/e1447597-eb6d-44f4-9802-d10420bea7db/Open-Meetings-Q-A.aspx)
If members of a public body deliberate, vote or take other action on a matter at an official meeting, they must do so in a way that allows the public in attendance to understand what subject is being considered. N.C.G.S. § 143-318.13 (c) (Source of information: http://www.ncdoj.com/getdoc/e1447597-eb6d-44f4-9802-d10420bea7db/Open-Meetings-Q-A.aspx)
Public bodies may not vote by secret ballot. N.C.G.S. § 143-318.13(b) (Source of information: http://www.ncdoj.com/getdoc/e1447597-eb6d-44f4-9802-d10420bea7db/Open-Meetings-Q-A.aspx)
Public bodies may vote by written ballot as long as the ballots are signed and the minutes indicate each member’s vote. Also, the public must be allowed to inspect written ballots immediately after the meeting. Written ballots may be destroyed after the governing body approves the official minutes. N.C.G.S. § 143-318.13(b)
If at all possible, move the meeting to a larger location to accommodate everyone present. If the meeting is moved to a different location, as a courtesy, put a note on the door of the regular meeting room letting latecomers know where the meeting is actually being conducted.
With few exceptions courts in North Carolina are open to the public. The N.C. Constitution states "All courts shall be open." North Carolina's federal courts are also open to the public and press. Unlike state courts, federal courts do not permit camera coverage.
In the 1980s the U.S. Supreme Court concluded that the First Amendment gives the public and press the right to attend criminal trials (including preliminary hearings, jury selection, opening statements, witness examination and closing) unless a trial judge enters an order containing specific written findings. Those findings must demonstrate that:
Yes those exceptions are: