Updated: 09/27/2007

Public Records

Public Records & Privacy Presentation (Power Point 2/13/2002)

1. Definition of Public Records
2. Public’s Right to Access of Records
3. Exceptions- Records Kept Confidential or Not Considered "Public"
4. Maintaining Public Records

1. DEFINITION: (G. S. 132-1(a))

A public record is any document, regardless of physical form, that is made or received in connection with the public business of any state agency. "Regardless of physical form" means that films, audio tapes, pictures, photographs, computer files and email, etc. may be considered public records as paper records.

2. PUBLIC ACCESS: (G. S. 132-6)

Who has a right to access public records?

In general, any person may inspect public records from a government agency during reasonable business hours and under reasonable supervision (G.S 132-6(a)). The individual requesting to see the public records does not have to give any reason why they wish to see the record (G.S. 132-6(b)).

Must computer records be available also?

Computerized records must also be available to the public.

In addition, all databases and spreadsheets created after July 1, 1996, must be listed or maintained in an electronic index that is available to the public (G. S. 132-6.1 (b)). The index must include a list of data fields, descriptions of the formats, how often the data is updated, any restrictions to access, how the data base may be reproduced by the agency’s computer facilities, and a schedule of fees for production of documents. For more information, see Index of University Databases

What about historical documents that could be damaged?

For old or fragile records, public access may be restricted to the extent needed to protect the records (G.S. 132-6(f)).

Can the State agency charge a fee to make copies?

Anyone may get copies of public documents from the State agency at a "minimal cost." Minimal cost generally means the cost of the copies themselves, but not the cost of labor or other overhead expenses in the production of the copies. However, a custodian may charge labor fees to fulfill extraordinary requests (see G.S. 132-6.2(b)).

Who must provide the public records?

Only the custodian of the records is responsible for providing access to those records under her/his control. This means that one agency or office does not have a responsibility to make copies of another agency’s records. A custodian is also not required to create or compile records that do not exist to fulfill a request (G.S. 132-6.2(e)).

3. EXCEPTIONS:

Exceptions that make records confidential include:

1. Trade secrets: information owned by private individuals or companies and labeled as confidential when provided to the State agency, including formulas, patterns, devices, and other technical information (G. S. 132-1.2(1-4)) (G.S. 66-152)
2. Library user records (G. S. 125-19)
3. Certain law enforcement records (G. S. 132-1.4(a))
4. An attorney’s written communications when the attorney is representing the State agency (G. S. 132-1.1(a)). However, these communications must be regarding actual or potential legal claims and in the scope of the attorney’s duty. Having a lawyer prepare records not concerning litigation will not make all information from that record confidential (see News & Observer Publishing v. Poole, 330 N.C. 465 (1992).
5. State agencies may make some information confidential concerning expansion or attempts to attract other businesses to the area (G. S. 132-6(d))
6. Most medical records kept by doctors (see G. S. 8-53)
7. Prescriptions (G. S. 90-85.36(a))
8. Most records from psychologists and other counselors that fall under the physician-patient privilege (see G. S. 8-53.3 and 8-53.4)
9. Information about employees and applications for employment (G. S. 126-22)
10. Education records of students in attendance at NC State (see FERPA restrictions)
11. Personally identifiable information from or about an applicant for admission to NC State (except that communications from elected officials about applicants remain public records). ( G.S. 132-1.1(f) )
12. Bids for State contracts before the award of the contract (G.S. 143-52)
13. Settlement documents from suits or arbitration in which any State agency is a party and are ordered sealed by the court (G. S. 132-1.3(b))
14. Other records made confidential by law.

IMPORTANT: The State agency has the responsibility and must pay any costs of separating any confidential information from otherwise accessible public records. An agency cannot deny access to an entire file if only part of that record has confidential information (G.S. 132-6(c)).

Anyone who is denied access to public records may seek a court action to compel the State agency to turn over the records (G.S. 132-9(a)). In the court action, the State agency has the burdens at trial to show the record was confidential (G.S. 132-9(b)). The presumption is that all State records should be open to the public.

4. MAINTAINING PUBLIC RECORDS

How should public records be kept?

Custodians should keep all public records in a secure, preferably fireproof place that is also easily accessible to the public (G.S. 132-7). Generally, public records should be kept in the same building where they are normally used. The Department of Cultural Resources is responsible for establishing standards, procedures, and techniques for managing public records (G.S. 132-8.1).

Can a custodian dispose of old/unused public records?

No person may destroy, sell, loan, or otherwise dispose of public records without consent of the Department of Cultural Resources or under approved procedures (G.S. 132-3(a) and G.S. 121-5(b)). University records must be destroyed according to the " University General Schedule " and the " University Records Retention and Disposition Regulation (REG01.25.12) ." These schedules set out how long the University must keep certain records before those records may be destroyed.

How should electronic mail be treated?

Email can be a public record, if it is made or received by a state employee in connection with State business. (Personal email is not public record.) And since it's public record, it must be retained for a period of time that varies according to the subject matter of the record. The way to determine how long to keep a particular record is to view the " Office Specific Retention Schedule"

The most authoritative source on email as public records is at the Division of Archives, which has legal responsibility for oversight of public record retention. See their website at http://www.ah.dcr.state.nc.us/records/ .

It says in part:

"E-mail is also used to transmit and receive messages which may have reference or administrative value but which are simultaneously of an ephemeral, temporary, or transient nature. As such, e-mail of this kind functions in some ways like telephone calls or telephone messages. Such messages remain public records but may be treated as having a reference or administrative value which ends when the user no longer needs the information such a record contains. E-mail of ephemeral or rapidly diminishing value may be erased or destroyed when the user has determined that its reference value has ended.

"Agencies and offices need, however, to pay particular attention to the sometimes complex requirements for the retention of e-mail for longer periods of time, i.e. e-mail of more than transient value. E-mail in this category may be retained in electronic or paper form (the latter may in some cases be the only means of providing for archival retention, for example through microfilming of paper copies), but must be retained for as long as the period specified in a valid records schedule. If retained in paper form, the copies must retain transmission and receipt data. If electronic mail is retained in electronic form, office administrators need to insure that their electronic environment (client server, mainframe computer in or outside their agency, or office personal computer) assures the retention of e-mail for the required period of time."

At NC State, a policy decision has been made to have each email user be responsible for the retention/archiving of his or her own email. Email of no lasting reference or administrative value can be deleted when its usefulness ends; other email must be retained according to the time period in the Retention and Disposition Schedule.