What are considered public records in NC local governments?
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.
Who owns public records in NC local government?
Who is responsible for keeping local government records?
Who may request local government public records?
Records Management and Retention and Disposition
Do I have to keep every record I send/receive about local government business forever?
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.
How do I know how long I need to keep records?
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.
How long do I keep emails and other types of electronic messages I sent/received about local government business?
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.
How should I file my emails and other electronic messages to ensure easy retrieval when I need them to respond to a record request?
What are transitory records?
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.
What are the appropriate methods of destroying records after the time period for keeping those records has expired (according to the Records Retention and Disposition Schedule)?
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.
Is it OK for me to maintain government records on my personal computer?
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.
Responding to Records Requests
I've just received a records request. What do I do?
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.
What CAN’T local government employees or officials require of persons requesting public records?
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.
Searching records to respond to a record request
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.
- First, remember to check paper files, because the record request didn’t specify only emails.
- Next, think of all the search criteria that might be applicable. For example, search for the word “solid waste”. It would also be a good idea to search for the words “garbage” and even “trash”. Don’t forget the time period of the request is January 1 of current year through February 28 of current year. The employee doesn’t need to provide records prior to or after that time period to satisfy that request. (It sure is helpful if the employee has filed emails in folders according to calendar or fiscal years!)
- Finally, in responding to the record request, the employee should state that he/she has searched of records, and to the best of the employee’s knowledge, is providing the records that satisfy the request. We’re all human, and humans make mistakes. It’s possible that the employee received an email about garbage collection, but garbage was misspelled. If so, a key word search for the word “garbage” (spelled correctly) would not find an email with the misspelled word. The employee didn’t intentionally withhold a record, and using the phrase “to the best of your knowledge” explains that the employee’s did his/her best at searching for records to respond to the request.
- If it’s a complex records request, then the employee may also want to share the list of key word searches used to search records with the requesting party and give them an opportunity to add additional key words to the search criteria.
- It’s a good practice to close the loop on records request by confirming with the requester that they are satisfied that the employee has fulfilled the request and they consider it complete.
Providing records in response to a record request
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:
- Make an appointment for the requesting party to come to the office and review the paper records. (NOTE: The employee might choose to open his/her files for the requested time period to the person, and it would be the responsibility of the person making the request to look through these files.) The requesting party could mark the pages to copy, and the employee would then let the person know the charge for these copies. Once the person agreed to the charges and authorized the copies, we would either make the copies at that time (especially if it’s a small request) or let the person know when the copies would be available for pick-up (especially if it’s a large copy request).
- Go through paper files, pull the records that apply to the request, and advise the person making the request of the copy charges. If the person authorizes copying the records, then let them know when they’ll be available for pick-up. If the person does not authorize the copies, then they may make an appointment to come in and review the records and then choose which ones they’d like us to copy. If they come in and review the records, then the requesting party could mark the pages to copy, and the employee would then let the person know the charge for these copies. Once the person agreed to the charges and authorized the copies, we would either make the copies at that time (especially if it’s a small request) or let the person know when the copies would be available for pick-up (especially if it’s a large copy request).
How much time do I have to respond to a record request?
What do I do if I get a record request for copyrighted records?
Is a draft record a public record that I must share if I get a request for it?
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.”
How do I know what to charge for producing records for someone?
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.
Do I charge someone for providing them records on a CD/DVD?
Do I have to create a record to satisfy a record request if a record doesn't already exist?
Am I allowed to deny a record request?
How do I know if a record is protected and I shouldn't share it with others?
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:
- Confidential communications from the attorney to the client within the scope of the attorney-client relationship as defined in N.C.G.S. 132-1.1 (that become public records in three years)
- Public enterprise billing information, as provided in N.C.G.S. 132-1.1.
- Controlled substances reporting system information as provided in N.C.G.S. 132-1.1 (which may be released only in accordance with The Controlled Substances Act).
- Criminal investigation records and records of criminal intelligence information, as provided in N.C.G.S. 132-1.4 (note that certain information pertaining to violations of the law and arrests and indictments, and certain content of ‘911’ calls are public records). Note also that certain information about violations or apparent violations of the law is a public record pursuant to N.C.G.S. 132-1.4(c).
- 911 data base information, if required by agreement with the telephone company as provided in N.C.G.S. 132-1.5.
- Sensitive public security information, including specific details of public security plans and arrangements, detailed plans and drawings of public buildings and infrastructure facilities, and certain plans to prevent and respond to terrorist activity, as provided in N.C.G.S. 132-1.7, and technology security information.
- Certain identifying information of minors participating in a park or recreation program, although the zip code of residence is a public record, as provided in N.C.G.S. 132-1.12.
- Other records for which statutory exemptions apply.
Examples of records protected from disclosure:
- Personnel files of employees, which include any information gathered by the local government with respect to an employee are protected, except for the specific information that NCGS 160A-168 requires to be public information.
- “Tax information” pertaining to a taxpayer’s income or gross receipts may not be disclosed, as provided in N.C.G.S.132-1.1, except as provided in N.C.G.S. 160A-208.1.
- Social security numbers and personal “identifying information” is confidential and unlawful to disclose to the public. If a social security number is lawfully collected, it must be segregated on a separate page, or as otherwise appropriate, from the rest of the record, as provided in N.C.G.S. 132-1.10. (See also N.C.G.S. 132.1.10, N.C.G.S. 75-61 and N.C.G.S. 14-113.20.)
- Trade secrets and electronic payment account numbers are protected as set forth in N.C.G.S. 132-1.2. (Note that to protect a “trade secret” detailed requirements must be met.)
- The seal of an architect, engineer or land surveyor when that seal has been submitted for project approval under Part 5 of Article 19, Chapter 160A (Building Inspections) as set forth in N.C.G.S. 132-1.2.
- Certain “trial preparation materials” are protected as provided in N.C.G.S. 132-1.9.
- Names and addresses of complaining witnesses to crimes must be temporarily withheld if release of the information is reasonably likely to pose certain threats to the witness or materially compromise the investigation, as provided in N.C.G.S. 132-1.4.
- Certain economic development incentives are temporarily protected, as provided in N.C.G.S. 132-1.11.
How do I redact protected information in the information I release in response to a record request?
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.
Other Helpful Resources
- North Carolina Open Meetings Law
- North Carolina Public Records Law
- Attorney General Roy Cooper’s Guide to Open Meetings and Public Records
- Attorney General Roy Cooper’s Public Records Q&A
- Attorney General Roy Cooper’s Open Meetings Q&A
- Records Retention and Disposition Schedule
- Guidelines for Electronic Records
- Email as a Public Record in North Carolina: Guidelines for Its Retention and Disposition
- Email User Guidelines Checklist
- Managing Your Inbox: Email as a Public Record (Online Tutorial)
- Managing Public Records Online Tutorial and Self-Quiz
- Managing Electronic Public Records: Recognizing Perils and Avoiding Pitfalls
What is the public policy of North Carolina concerning meetings of public bodies?
What are public bodies?
What are official meetings?
Are all meetings covered?
What about conference calls and electronic communication that might be considered deliberating or conducting official business?
Are workshop meetings, agenda meetings, retreats and work sessions covered?
Can a board majority gather informally or socially without constituting an official meeting?
Can a board chair meet individually, and privately, with each member to discuss a public matter?
What kind of public notice is required for official meetings?
What are regular meetings, and what notice is required?
To change the regular meeting schedule, a revised schedule must be filed at least seven days before the first meeting for which it applies.
What are special meetings, and what notice is required?
What are emergency meetings, and what notice is required?
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.
What are recessed meetings, and what notice is required?
Must public bodies keep minutes of official meetings?
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)?
What are the civil remedies for violations of 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.
Are all public bodies subject to the Open Meetings Law?
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)
May a public body ever hold a closed session of an official meeting?
What are the permitted purposes for holding closed sessions?
What is the procedure for holding a closed session?
Are we required to have minutes of closed sessions?
Is a governing board allowed to vote in a closed meeting?
May a board prohibit its members from disclosing what happened in a closed session?
The Public’s Rights
May the public request notice of meetings?
Does the open meetings law guarantee the public's right to speak at official meetings?
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.
What are the public's rights to listen to electronic meetings?
What are the public's rights to record and/or broadcast official meetings?
May public bodies conceal the subject of their actions or deliberations?
May public bodies vote by secret ballot?
May public bodies vote by written ballot?
What if a large crowd shows up for a public meeting, and the room is too small to accommodate everyone?
Are North Carolina courts open to the public?
When can courts be closed to the public?
- that closure is absolutely necessary to protect a “compelling” governmental interest;
- that no less restrictive measure short of closing the courtroom will suffice to protect that interest; and
- that the closure is “narrowly tailored ” so that its scope and duration are as limited as possible.
Are there exceptions to the general rule of open court proceedings?
Yes those exceptions are:
- Commitment hearings. The N.C. Court of Appeals has ruled that there is no right of access to involuntary civil commitment proceedings. However commitment hearings for people found guilty by reason of insanity in criminal cases are public and must be held in the court where the original trial took place.
- Conference. Any bench conference between judges and lawyers, conferences between lawyer and their clients are not intended for the public.
- Grand jury proceedings. Federal and state law requires that grand jury proceedings be conducted in private. It is also a crime for a grand juror to release information that is presented to a grand jury. It is not a crime for a news organization to publish the information.
- Juvenile proceedings. Once closed as a matter of public policy juvenile proceedings are now presumptively open to the public and the court must find “good cause” to close a proceeding. No proceeding can be closed if the juvenile requests that it be open.
- Sex crimes cases. In cases involving charges of rape, attempted rape, sex offense or attempted sex offense the court may be closed during the testimony of the victim.
- Potential for violence. This law is rarely used and if invoked, it probably would not call for the exclusion of all persons.
- Proceedings involving medical peer review records. This is a recent ruling by the N.C. Supreme Court that held the public does not have a right to access court hearings that concern confidential information relating to medical peer review records.
- Trade secrets. Generally a court can be closed while trade secrets are discussed.
- Victim’s compensation. These take place before administrative law judges who may exclude from a hearing all persons not directly involved in the hearing during the taking of medical and law enforcement information as evidence.