From NC Local: The right to know, takeaways from the Workshop’s public records training session

By Eric Frederick

NC Local newsletter editor
Obviously, reporting on public meetings has changed this year, with most of them going virtual. Journalists, as always, have faced issues getting public records, and data are even more crucial now to public health and safety. The challenges of reporting on police actions have been amplified, and we’re dealing with legislative secrecy.

The NC Local News Workshop and the NC Open Government Coalition at Elon, working with the NC Press Association, held a session Aug. 26 where journalists and experts shared what they’ve learned about getting public information in these times.

Panelists were communications lawyers Amanda Martin and Mike Tadych, and reporters Tyler Dukes of WRAL; Emily Featherston of WECT; Nick Ochsner of WBTV; Victoria Bouloubasis, a freelance investigative reporter who has been working with Enlace Latino NC; Kirk Ross of Carolina Public Press; and Lucille Sherman of The News & Observer and The Herald-Sun. [Watch the Zoom recording.]

Key takeaways:

◼️ MEETINGS

COVID rules: During a state of emergency declared by the governor, public bodies may meet virtually, but they must provide a way for the public to attend, participate and comment, Martin said. They still cannot vote by reference to a previous topic or by secret ballot, essentially meaning they will vote by roll call.

The basic open meetings law has not changed and will be in force again when the emergency ends.

◼️ DOCUMENTS

As always, “start with the proposition that every document made or received by a public agency is a public record unless it’s specifically exempted” by statute, Martin said.

And if a document contains both confidential and non-confidential information, the agency must remove what’s confidential and produce what’s public. This happens a lot, obviously, with health records, and local agencies sometimes need to be educated on that point, Martin said.

◼️ ABOUT HIPAA AND FERPA…

Remember, HIPAA only applies to “medical providers or the business affiliates of medical providers — so, insurance companies and folks like that,” Martin said. “And so if somebody is citing HIPAA to you, you need to step back and fundamentally figure out, is that even a reasonable answer?

“The football coach who gets asked the question about a player who is hurt in the Friday night game — he may not want to answer your question, but it’s not because of HIPAA. It’s because he doesn’t want to answer your question.”

As for FERPA: “If you ask for almost anything from a university that has anything to do with the student, that’s what they’re going to say, and that’s an inappropriate answer. … It only applies to education records. And so it’s not just everything that has to do with a student, every document that has a student’s name.

“So again, you know, if the football coach or some teacher or professor or the school bus driver says HIPAA, they’re wrong, and on FERPA you just need to look really carefully to see if the information really is an education record.”

◼️ POLICE ACTIONS

In North Carolina, if you want a police video — even if the police don’t object — “you have to go to the courthouse and convince a judge,” Ochsner reminds us. That means the courts can get bogged down with requests, and that brings long delays, as Ochsner has reported in Mecklenburg County.

It helps, Tadych said, to be ready to convince the judge that the video is a matter of great public concern. It can also help to have allies — including families involved with people in the videos.

Personnel records, of course, also are involved in disputes over police conduct. There are about a dozen data points that are public record in those, Martin says. “If someone has been placed on any kind of administrative leave, suspended, anything, you have the right to know that. If somebody gets a promotion, you’re entitled to know it and to know why. If someone gets a demotion you’re entitled to know it, but not to know why. If they’re terminated for a disciplinary reason the termination letter has to say why, and you have a right to get that.”

If you run into resistance, Martin suggests that asking to see “everyone who’s employed by the police department” to look for suspensions and other personnel actions can give you some leverage.

Ochsner says he’ll send an email to human resources and ask for those dozen public data points for an employee, reminding the recipient that the law says he can get them right away if he shows up in person. “Generally that actually works,” he said.

◼️ COVERING LAWMAKERS

You’ve heard the story of how Sherman’s vigilance uncovered a provision added late one night in June to Senate Bill 168 that would have made it harder to get records in death investigations. Such episodes are becoming more common, Ross said: “We’re seeing a process now that really does eliminate any public input, and we’re seeing a product that is messy.”

Sherman and Ross both stressed “being there.” Or, in these times, listening and watching virtually — monitoring committees, thumbing through iterations of bills, examining the language.

Ask lots of questions, even if they seem uninformed, Sherman advised. “It can be embarrassing, but that’s also our job.” Ross added: “One of my favorite things is just to wander up to people, a legislator a lobbyist or somebody … and go, ‘What the heck is going on?’ And sometimes people will say, ‘Oh, you mean about blah,’ and then you go, ‘Tell me about it.’”

Ross suggested developing multiple sources on everything “because people will lie to you,” as well as following other journalists and lobbyists on social media and reading intel reports from lobbying firms.

◼️ MORE PRO TIPS

Know the law. On public records, knowledge helps you respond effectively, “so that you know where to draw lines in the sand,” Martin said, and also helps to maintain your credibility — so “you’re not demanding something that you don’t actually have a right to get, and that you are demanding the things that you do.”

Work together. “Don’t feel like you’re on an island by yourself,” Tadych said. “Discuss it with your competitors. They’re probably experiencing the same thing. … You all are going to cover it differently. And the public benefits at large.”

Try different doors. Dukes pointed out that North Carolina is a very decentralized state, and the information you need can be in several locations: “Maybe the state has it, but the counties might also have it.”

Find out how the sausage is made. Dukes likes to chat with the record-keepers about how it all works. “One of the conversations I try to have with people is just, on background, walk me through … How it is that you track this?” he said. “Where does the data go? Where are you getting it from? Just kind of informing you about the process…. I find that after I do that I’m able to more effectively ask for things that I’m pretty sure exist.”

Help them get it to you. “Have you tried to make it as easy for the person you’re trying to get it from as possible?” Featherston said. “Even if that includes, you know, ‘I’ll bring you a thumb drive. I’ll send you a Document Cloud link.’ … That can go a long way.” Several panelists agreed that it also helps to be polite — but firm. With some sources, “I try to sweet talk people,” Featherston said. “But then I’ll hit them with the actual statute language if I have to.”

Some exemplary work
More resources
➡️ Transparency in the time of COVID-19: Public Records Edition By Amanda Martin. (Don’t miss the additional resources at the bottom.)
➡️ What To Say When They Say No. Martin’s very useful list of scenarios.
➡️ The Open Government Guide from the state Attorney General’s Office.
➡️ Law Enforcement Agency Recordings, a slide presentation by Mike Tadych.
➡️ The NC Open Government Coalition website and FAQ on COVID-19 and public records.
➡️ The NCPA legal hotline for members.
➡️ North Carolina Bill Tracking from the National Freedom of Information Coalition.

This item originally appeared Sept. 2 in the NC Local email newsletter from the NC Local News Workshop. Find past editions and sign up for the weekly newsletter here.