Public Records Law
How to Use Public Records Law
What is a public record?
The term includes paper records, of course. Correspondence, reports, minutes of meetings, hand written notes, phone messages, and so forth. But it also includes maps, photographs, audio and video recordings, e-mail, databases, and spread sheets created or received by a government agency in the course of doing public business.
How do you know which ones are public and which ones aren't?
Under the state Public Records Law, G.S. 132, every record is public unless there's another law that says it isn't. And North Carolina courts have said repeatedly that the state public records law should be construed liberally. So, until you know better, you should assume that any record you want is a public record.
Do the media have more rights to public records than citizens?
No, and we don't want any. Everybody has the right to examine and obtain copies of almost all public records. And you're not required to say why you want the record or what you plan to do with it either.
Whom should you ask for a public record?
The custodian of a record - generally, the public official in charge of the office where the records are located - is the person obligated by law to provide access and copies. That's usually the person to ask. But, as discussed below, you sometimes may opt to ask the agency's public information officer.
Can they make you go through its public information officer?
Absolutely not. If the custodian wants to consult her agency's PR person or anybody else, fine. But the custodian is still answerable to you for your request. Sometimes, for your own reasons, you actually may prefer to route the request through the PIO, the agency counsel, or someone else who will get you want you want. But that's your option, not theirs. The agency cannot interpose any official as a gatekeeper who would stand between you and the custodian of the record you seek.
Can an agency require you to put a record request in writing?
In some cases, they can. Even where written requests are not required, however, it sometimes is a good idea to put them in writing. If it is a complicated request covering, for example, a range of documents created over a particular time span, addressing specific subjects, or received or created by specific individuals, it might be better to put the request in writing. In two situations, an agency can insist on a written request. A public agency may require that a request for a copy of computer databases be submitted in writing, and anyone seeking copies of a geographical information system may be required to agree in writing that he or she will not use the record for commercial purposes.
How quickly must the custodian produce the record?
The custodian must allow you to examine it "at reasonable times and under reasonable supervision" and, if requested, must provide copies "as promptly as possible." What do "reasonable" and "promptly" mean? In most cases, that means today. But those words can mean tomorrow, or next week. It depends on how much time it takes to assemble the records you want. Did you ask for the director's expense reports for January? Or is your request more complicated? Reasonable can depend on what's going on at the agency. Are the employees packing up to move to a new office? Are they short-handed and trying to respond to an emergency? In that situation, the law does not require the agency to stop what it's doing and produce the record you want. On the other hand, "reasonable" does not mean whenever they get around to it. You're not asking them for a favor; you're asking them to do their job.
Can you get information the way you want it, a paper record or an electronic record?
If they can give it to you either way, the answer is yes. The law says they must make us a copy, "In any and all media in which the public agency is capable of providing them."
How much can a public agency lawfully charge?
The law requires them to provide copies for "free or at minimal cost." In a few instances, copy fees are specified by law. Two examples: Clerks of Superior Court are permitted by law to charge $1 for the first page and 25 cents a page for additional pages. But absent a specific law, the fee cannot exceed "the actual cost of reproducing the public record or public information." You don't have to pay an "overhead" charge. And agencies can't just make up a fee -- Oh, I think 25 cents a page sounds about right -- and make you pay. It's against the law. The cost of a database ranges from free to several hundred dollars, depending on how much programming you ask the agency to do.
When public and private records have been commingled, who pays to separate them?
What to Do If You're Unlawfully Denied Access to a Public Record
- First, talk to them.
- Ask them to cite the law that trumps G.S 132. Agencies may offer all sorts of reasons for not releasing a public record. If you are denied, you'll want to ask for their authority. Say to them: "North Carolina's public records law, Chapter 132 of the General Statutes, provides for public inspection and copying of most records made or received by state or local governments and their subdivisions, regardless of the physical form of the record. If you contend that the document I have asked for is not a public record, please advise of the specific authority for that position." To deny access to the record you have requested, they are going to have to have a law that takes the record out of the public domain, a law that trumps G.S. 132.