BEST PRACTICES FOR PUBLIC RECORDS REQUESTS PART 2 – RESPONDING TO “NO”

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Last month we wrote about best practices in framing your public records requests.  This month, we offer some specific language to put in your email or letter if you are responding to a public official who has denied you the documents you seek.

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They Say:  That’s confidential, privileged or private.

You Write: Dear [Person Who Is Denying Me Records]:  

The Public Records Law explicitly provides, “[I]t is the policy of this State that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law.” G.S. § 132-1(b). The NC Supreme Court and Court of Appeals repeatedly have ruled that the Public Records Law “grants public access to documents…. Absent a specific statutory exemption,” the document must be turned over.  McCormick v. Hanes Aggregates Southeast, Inc., 164 N.C. App. 459, 471, 596 S.E.2d 431, 438 (2004).  

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They Say: That’s still a draft/hasn’t been approved/will be released after XYZ person has a copy.

You Write: Dear [Person Who Is Denying Me Records]:  

The NC Supreme Court has held that “draft reports…. are subject to disclosure under the Public Records Act.”  News and Observer Pub. Co., Inc. v. Poole, 330 N.C. 465, 484, 412 S.E. 2d 7, 18 (1992).  If the document you provide is not a final version, please mark it as draft.

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They Say:  You can’t have that because it is part of a criminal investigation.

You Write: Dear [Person Who Is Denying Me Records]:

The North Carolina Public Records Law, and the criminal records provisions in particular, make clear that you may not withhold a document simply because it is being used in connection with a criminal investigation. “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). If the document was a public record before the investigation, it still is a public record.

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They Say: That’s protected by HIPAA.

You Write: Dear [Person Who Is Denying Me Records]:

Only “covered entities” – health care providers, insurance companies, and other organizations that handle health care information electronically – are subject to HIPAA.  HIPAA does not apply to [police departments, county commissions or high school football coaches].  45 C.F.R., Sec. 160.103.  Because [insert public agency here] is not a covered entity as defined by HIPAA, the requested documents are not exempt from disclosure.

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They Say: That’s protected by FERPA.

You Write: Dear [Person Who Is Denying Me Records]:

FERPA only exempts “education records” from disclosure.  As Judge Howard Manning wrote in News and Observer v. Richard A. Baddour, Wake County Superior Court, Case No. 10 CVS 1941: 

FERPA applies only to "education records," which are defined as "those records, files, documents, and other materials that (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution." 20 U.S C. § 1232g(a)(4)(A). The U.S. Supreme Court has held, ''The word ‘maintain’ suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database, perhaps even after the student is no longer enrolled." Owasso lndep. Sch. Dist. No. 1-011 v. Falvo, 534 U.S. 426, 431-33 (2002). FERPA does not provide a student with an invisible cloak so that the student can remain hidden from public view while enrolled at UNC-CH.

In an amicus brief filed by the United States in Owasso Independent School Dist. v. Falvo, the U.S. cited and quoted the legislative history of FERPA and the amendment inserting the term “education records”:

Consistent with the manifest intent of Congress simply to clarify the meaning of "education records" covered by the Act, the Joint Statement and other statements by Members of Congress during the debate on the amendment refer to "institutional records," "school records," and "documents * * * used by the institution in making institutional decisions concerning a student."

Ultimately, the Court in Owasso found the meaning of “education record” to be narrow:

Two statutory indicators tell us that the Court of Appeals erred in concluding that an assignment satisfies the definition of education records as soon as it is graded by another student. First, the student papers are not, at that stage, “maintained” within the meaning of § 1232g(a)(4)(A). The ordinary meaning of the word “maintain” is “to keep in existence or continuance; preserve; retain.” Random House Dictionary of the English Language 1160 (2d ed.1987). … The word “maintain” suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database … .

Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426, 431-33 (2002). See also, S.A. v. Tulare County Office of Educ., 2009 WL 3296653, 3 & 4 (E.D. Cal. 2009) (“FERPA does not contemplate that education records are maintained in numerous places. As the Court set forth above, ‘Congress contemplated that education records would be kept in one place with a single record of access.’”); Rome City School Dist. Disciplinary Hearing v. Grifasi, 10 Misc.3d 1034, 1036-37, 806 N.Y.S.2d 381, 383 (N.Y. Sup. 2005) (In a case dealing with a videotape that revealed an altercation between students, a New York court found “FERPA is not meant to apply to records … which do not pertain to the educational performance of the students captured on this tape. Clearly, the videotape in question is not an ‘educational record’ within the meaning of FERPA.”)

They Say: You can’t have that; it has confidential information in it.

You Write: Dear [Person Who Is Denying Me Records]:

The N.C. Public Records Law explicitly provides that if a document contains public information, the public information must be disclosed.  G.S. § 132-6(c).  A public agency choosing to remove confidential information from such a record must bear the expense of the separation process.  See also, Dunham v. Whitacker, Guilford Superior Court, Case 20-CVS-6454 (Feb. 22, 2022)

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They Say: You can have that; it will cost $10,000.

You Write: Dear [Person Who Is Denying Me Records]:

The N.C. Public Records Law provides that the public is entitled to copies of public records “free or at minimal cost.”   G.S. § 132-1(b).  The public cannot be charged for the staff time required to pull records or the time spent to remove confidential information. G.S. § 132-6(c).

Never forget the NCPA Hotline as a resource.  We can help you draft letters, evaluate responses and strategize next steps. To reach three media lawyers at once for free legal advice, write to Hotline@ncpress.com.