FIRST FOR A REASON Info & Ideas About the First Amendment & Media Law



Some of you remember Governor Cooper before he was governor - even before he was attorney general - back when he was Senator Cooper.  In 1995, then Sen. Cooper was the architect of a significant revision and update of the North Carolina Public Records Law.  In large part it was this update to the law that "modernized" our rights of access to public records.  This month, Gov. Cooper issued Guidance for Public Records and Meetings Access for North Carolina State Government Employees.

Gov. Cooper's introduction states the document is intended to provide "guidance to Cabinet level employees and commissions on best practices to allow the public access to records and meetings." 

Of course, we disagree with government officials from time-to-time about interpretation of the Open Meetings Law and Public Records Law, but it's worth celebrating when we agree.  And for those of you in the trenches trying to get access to records and meetings, you may have better luck persuading a public official if you cite government officials and documents instead of "the lawyer for the Press Association."  With that in mind, I've highlighted below some passages from the governor's guide that may be helpful in the field, when you try to convince a government official that you're entitled to access.  Copy and paste these nuggets into your emails and letters as needed. (In my cheat sheet below I've given you the page numbers from the guide.)  Remind the public official this is the official word from the governor. And if you happen to bump into Gov. Cooper, thank him for this strong statement in support of transparency and liberal access to government records.

Responsibilities of Public Officials Generally

§ "[P]roviding access to records and meetings is an important part of the everyday duties of office holders and government employees, as well as appointed and elected members of government boards and commissions."  p 1.

 § "State employees and officials conduct the people's business.  Our responsibility rests with following the law and providing members of the public with the information to which they are legally and ethically entitled."  p 6.

What's Covered?

§ Public records include "drafts, as well as final versions, of documents, memos, voice recordings, social media posts, and more."  p 1.

§ "A record is considered public if it is made or received in connection with public business.  Therefore, your personal email, personal mobile phone records, or social media posts may contain public records.  This means anyone in your agency who uses any business or personal device to conduct public business is required to retain the public records and produce them in response to requests."  p 5.

Fees for Public Records

§ "No fee may be charged for inspecting public records or records produced electronically."  p 2.

 § "Five cents per page is recommended, but no fee charged should exceed the actual cost of making the copies."  p 2.

Records That Contain Confidential Information.

§  "Strive to provide as much information as possible under the law.  Documents that contain non-public items may themselves still be able to be produced as public records once those items are redacted." p 3.

§ In many cases, "the record itself can be considered public once non-public information has been redacted or the reason for the document being treated as non-public no longer exists."  p 5. 

Timing of Release

§ "[T]he Public Records Act does not permit an automatic delay by the government in releasing public records, either to allow for approval of the disclosure or to notify people identified in the public records."  p 4

§ "Public employees may not withhold records based on the agency or commission's belief that immediate release of the records would not be 'prudent or timely' or cause embarrassment."  p 4.

Government Duties When Denying Access.

§ "If a records request is denied, the agency must give a reason at the time of denial.  If asked to do so, the agency should cite the statute that prevents the information's release and whether circumstances could change."  p 5.

Attorney General Josh Stein has a similar guide in the works, and it is even more detailed regarding specific records and meetings.  I will send a link and digest of that report when it is released later this summer.

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