When reporters call the Legal Hotline, I often talk through what amounts to a public records flowchart in analyzing their questions. For a couple years, I’ve wanted to put that analysis into an actual flowchart, and if I were better at Word or Power Point, that would be my column for this month. Instead, I will outline – with words instead of boxes and circles -- the questions I ask to determine whether a particular document (or portion of a document) is a public record.
1. IS THE RECORD YOU SEEK IN THE HANDS OF (“RECEIVED BY”) A PUBLIC AGENCY OR WAS IT CREATED BY A PUBLIC EMPLOYEE OR PUBLIC AGENCY?
If yes, proceed to #2.
If no, that’s usually the end of the Public Records Law inquiry. There are some rare exceptions for certain documents held by nonprofits.
2. IS THE RECORD RELATED TO THE TRANSACTION OF PUBLIC BUSINESS?
If yes, proceed to #3.
If no, is the public employee an Executive Branch employee? If so, there is an argument it is still public under Perdue Executive Order 18 and McCrory Executive Order 12. If not, end of Public Records Law inquiry.
3. IS THE RECORD MADE CONFIDENTIAL BY SPECIFIC STATUTE?
If no, then it is a public record.
If yes, proceed to #4 and #5. Always ask for the exact statute number that allegedly exempts the record from disclosure.
4. IS THERE AN EXEMPTION TO THE EXEMPTION?
If yes, it is a public record. For example, G.S. 132-1.4 subsection (a) exempts certain law enforcement records from the Public Records Law, but subsection (c) nonetheless makes certain law enforcement information public. There is a similar analysis for personnel records.
If no, proceed to #5.
5. HAS THE TIME PERIOD OF THE EXEMPTION ELAPSED?
If yes, it’s a public record. For example, G.S. § 132-1.1(a) provides that attorney-client privileged communications to public agencies become public record three years from the date such communication was received by such public agency.
If no, proceed to #6.
6. IS SOME OF THE INFORMATION IN THE RECORD PUBLIC?
If no, end of inquiry.
If yes, public agency must remove the confidential portion and release the balance.
ONCE YOU HAVE DETERMINED YOU ARE ENTITLED TO SOME PORTION OR ALL OF THE RECORD, there are a few more things to be aware of.
Cost – Ordinarily an agency can charge the actual cost of a copy of the record, which doesn’t include overhead or staff time.
Timing – You are entitled to get the record “as promptly as possible.”