Amanda Martin
- The NC Public Records Law applies to public business documents made or received by a public agency or official. G.S. § 132-1(a). It doesn’t matter if they exist on an “official” computer or account or personal. So, when you ask for emails, for example, clarify that you want all responsive emails, “regardless of whether those emails were created or exist on a government email system or personal.” And you might clarify that you want any attachments to the emails, too.
- If you are asking for a large number of documents, ask that they be produced as they are collected and not held until they all have been collected.
- A public records request cannot be denied just because a document contains confidential information. The public agency must remove the confidential information and release the non-confidential, and the agency must pay that cost. G.S. § 132-6 (c).
- You can specify the format in which you want a public record, but if the documents you want already have been posted online, the agency can direct you to access them through the website. N.C. Gen. Stat. §§ 132-6(a), 132-6(a1).
- Even though agencies are pushing people toward portals for public records requests, there is no requirement in the statute that you must use them. You might consider a parallel approach: Make your request through the portal but also make your request directly to the person who actually has the records you want.
- As everyone knows, delays in getting public records are more common than we would like. If you believe a delay is deliberate rather than simply a function of processing time, you can cite a 2021 court order from Columbus County. The trial court held that an unjustified one-month delay in production of records was tantamount to a denial, writing “The plaintiffs have been denied access to public records in the sense that an unnecessary, undue, and unreasonable delay in providing them amounts to a substantial failure to comply with the Public Records Law.” News Reporter Co., Tabor-Loris Tribune, et al. v. Jody Greene, Case No. 20 CVS 1147, Columbus County, North Carolina (Feb. 19, 2021). The court ordered the records produced, ruled in favor of plaintiffs on all counts, and ultimately awarded the plaintiffs their full fees in litigation.
- Public records are public from the time they are created. They don’t have to be final, and the fact that a record is draft is irrelevant to its status as a public record. Politely invite the public agency to simply stamp “draft” at the top.
- You may only be charged the actual cost for copies of public records, which can include such items as paper, a computer disk, or the like but not overhead items such as staff time, equipment rental or office space. G.S. § 132-6.2.
- You cannot be required to say why you want a public record. G.S. § 132-6 (b).
- Generally speaking, disciplinary records of public employees are not public. However, if a public employee is terminated for disciplinary reasons, you have a right to “a copy of the written notice of the final decision of the municipality setting forth the specific acts or omissions that are the basis of the dismissal.”
- Criminal investigative records are not public records. However, some information is public as a matter of law, unless law enforcement gets a court order:
- The time, date, location, and violation or apparent violation of the law reported.
- The name, sex, age, address, employment, and alleged violation of law of a person arrested, charged, or indicted.
- Circumstances surrounding an arrest, including time and place of the arrest, whether the arrest involved resistance, possession or use of weapons, or pursuit, and a description of any items seized in connection with the arrest.
- "911" and other emergency calls other than information that reveals the name, address, phone number, or other identifying information of the caller, victim, or witness.
- Communications among law enforcement agencies broadcast over the public airways.
- Name, sex, age, and address of a complaining witness.
N.C. Gen. Stat. § 132-1.4 (c)
12. “The use of a public record in connection with a criminal investigation or the gathering of criminal intelligence shall not affect its status as a public record.” G.S. § 132-1.4 (f). This means that law enforcement agencies cannot deny you access to information or documents by stating “That’s part of the investigation.” If it started as a public record, it stays public even when it’s placed in “the criminal investigation file.”
13. We don’t have a right to get, or even see, law enforcement video recordings without a court order. There is a statute that provides a method to petition the court for access. G.S. § 132-1.4A. Prior to the statute, we very rarely got the recordings. Although the process is more cumbersome and more expensive than a routine public records request, judges release the video more often than not.
If you have a suggestion for future topics or a question you’d like answered, email us at amartin@smvt.com or beth@smvt.com.
