Over the years, we have observed what works – and what doesn’t – when making public records requests. We offer this collection of best practices for you to refine and streamline your information gathering from public agencies. Use the links below to access samples and tip sheets.
What You Ask For
I have never fished. (I’m not counting that time at a stocked pond with my grandfather when I was probably 5.) So, I don’t know if my fishing analogy works, but I always think of the best public records requests as fishing with a line and a net. With the line, you go for specific, targeted information. It might be a record you know exists or one that you think almost certainly exists: “the email that Mayor Jones sent to Town Manager Hooper on April 21 regarding the location of the new wastewater plant” or “any email from Mayor Jones to Town Manager Hooper regarding the location of the new wastewater plant.” He surely must have some.
With the net, you make broad requests that might pull in things you didn’t even know existed but that would interest you: “any emails sent to or from City personnel regarding the wastewater plant.” With that request, you should get Mr. Jones’ emails, but you also might also get emails related to the finances of the plant, emails from the City’s engineering department or emails from constituents.
Experience teaches that if you do not specifically request attachments to emails, public agencies will blow right by and not produce them. It also may be important to define “email” to include emails about public business that exist on “private” platforms. Sometimes definitions help. Putting in data parameters can stop you from receiving push-back based on the size or your request or receiving thousands of documents, when really you are only interested in a few dozen. Litigation in 2022 taught us that responses might be slow and expensive if you leave the format of production up to the public agency. One North Carolina town was converting requested emails into PDFs and attempting to charge $10,000 for the process! If you are requesting emails and ask that they be produced in .pst format, you eliminate the conversion step and will make it easier on yourself once you get the records. Attachments should still be attached, and you can search the documents once you get them. If the documents you seek aren’t emails, ask for them in their native format. They will be far more usable to you.
Combining these principles would yield a request like this:
Pursuant to the North Carolina Public Records Law, G.S. § 132-1 et seq., I write to request copies of all communications sent or received between July 1, 2022, and December 31, 2022, by City personnel regarding the wastewater plant. For the purposes of this request, “communications” is defined as all communications sent or received by email, text message or communication using any other platform. For requested emails, I request responsive records from both official City email account and any personal email account used related to City business. Please produce data in its native, electronic format (such as Outlook email files). Please assure all attachments are included. Provision in .pst format is acceptable. For requested text or other messages, I request responsive records from any phone or device issued by the City as well as any messages related to City business or City officials that are sent or received using personal devices.
Asking for Subsets
Suppose you want some information that you know exists, but it is in a database with information that even you admit is confidential. Some public agencies will deny your request, arguing either that the entire database is confidential or that they don’t have an obligation to create a record that doesn’t exist. The answer to this problem is in framing. You are not asking for the creation of a new record. It is correct that you do not have the legal authority to do so. You are asking for an existing record and allowing them to remove from that record anything that is confidential. That is specifically authorized in G.S. 132-6(c). Moreover, the statute is clear that they bear the cost of making those redactions.
Who You Ask
The Public Records Law makes the custodian (the public official in charge of an office having public records) legally responsible and sue-able if you don’t get the records you want. But you likely should begin the request process with the person who actually has physical or electronic possession of the records. If you want financial information from the City of Charlotte, you should start with whomever has the documents within the City of Charlotte Finance Department, not the mayor. If you don’t get the information you want, you may escalate the request, but start with the person who actually has the records. If that person tells you that you must go through the PIO, don’t believe them. You may choose to copy the PIO on your requests, because a particularly good and helpful PIO can be a friend to a public records requester, but at least one North Carolina court has held that a public agency cannot set up a gatekeeper of records.
What’s Confidential Adjacent
Sometimes public officials don’t release records because they feel confidential. That’s not legal. You might be covering a public embezzlement case and ask for some financial records from the City. Don’t yield if you are told, “Those are part of an ongoing investigation.” The law states in black and white that “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). So, if it was a public record before the investigation got started, it’s a public record during and after the investigation. Suppose you heard that an anonymous survey was conducted among county employees asking their thoughts and feelings about the workplace environment. You ask for the results, and you are told, “That’s personnel.” No, it’s not. It may be about personnel, but unless people signed their names to it or named names, it’s not exempt from disclosure. What if you are asking for documents that were submitted by a private company doing business with Town X, and you are told “Those records are confidential.” That’s not good enough. Remember that a public agency must either give you the records you requested or a specific, statutory basis for denying your request. We always say that a public records denial must include numbers – the statute citation that justifies withholding.
Also, beware of citations to federal statutes with initials – HIPPA, DPPA, FERPA. The first question to ask in those situations is whether the statute even applies. For example, HIPPA only applies to medical providers and organizations like medical insurance companies. It doesn’t apply to the high school coach who has a player with a broken leg. Similarly, the Drivers Privacy Protection Act doesn’t apply to your local police department with an accident report. Also consider if the information you are requesting really is exempt. For example, the University of North Carolina denied access to parking tickets for football players, claiming they were exempt from disclosure under FERPA. The court saw it differently, saying that parking tickets aren’t education records, and only education records are covered by FERPA. UNC had to fork over the parking tickets plus a lot of money in attorney fees.
So, when you receive a “no” in response to a public records request, evaluate it critically to consider if the basis for the denial is grounded in a statute that actually applies to the situation and to the specific records requested.
When You Get Your Records
In a way, our law is vague about the timing of compliance with public records. It says you are entitled to receive public records “as promptly as possible.” That means that simple requests for small numbers of records should be fulfilled very quickly. If you walk into a police station and ask for public criminal records, you should walk out of the police station with records in your hand. On the other hand, if your request is voluminous and complicated and requires the removal of confidential information, it may take some time. One of our clients made a request to a school board for emails ranging over years. The mere production of those emails was cumbersome, because the school system had an antiquated email system; and because the emails were loaded with confidential student and personnel information, they had to be reviewed before release. The compromise was that we received records in batches, as they were cleared of confidential information. Include a specific request that records be produced to you as they become available rather than all at once when they are fully assembled.
One pro tip I picked up from a veteran reporter is that before doing anything else, you should always make a copy of records you receive. The reporter gave that advice back when we mostly got paper in response to our requests, and his point was that you should keep a pristine copy that doesn’t get covered with your scribbles and notes. It’s still good advice, though. Even if your records are electronic, make a duplicate before you start sifting, sorting and marking up the documents. It protects against human error – the time you accidentally hit “select all” and “delete” instead of “copy.” It also protects against the heaven-forbid possibility that you have to produce these records in a lawsuit someday. Your lawyer will appreciate the clean copy that doesn’t require hours of work to remove your mental impressions.
Finally, if you are working on a public records request and get stuck, or a public official has given you an answer you suspect may be illegal, never forget the NCPA Hotline as a resource. We can help you draft letters, evaluate responses and strategize next steps. For a comprehensive tipsheet, go here. For a sample letter, go here. To reach three media lawyers at once for free legal advice, write to Hotline@ncpress.com.