If you’ve made a recent request under the NC Public Records Law, you may have noticed that some government agencies -- UNC-CH, Wake County, Charlotte-Mecklenburg Schools, and the city of Fayetteville, to name a few -- have created centralized, online portals for requests. These portals purport to give journalists and citizens a one-stop source to access all of that institution’s public records, regardless of who is the actual custodian of the records. But are these portals helpful or harmful to transparency? And are you required to use them?
We usually advise requesters to direct records requests to the person who would most logically have the records. For example, if you are seeking emails, making your request to the sender or receiver of the email usually makes the most sense. The law tells us in no uncertain terms that “[e]very custodian of public records shall permit any record in the custodian's custody to be inspected and examined at reasonable times and under reasonable supervision by any person, and shall, as promptly as possible, furnish copies thereof upon payment of any fees as may be prescribed by law.” G.S. § 132-6(a). But who is the custodian? Legally, “custodian” is defined as the “public official in charge of an office having public records.” You’re probably not going to start by asking the school superintendent for an email about some line item in the school budget, though, even if that may be who you sue if you have to litigate to get the email.
However, these new portals create an online system for anyone to request public records from the institution without having to figure out the precise identity of the custodian. The requests are searchable and are logged publicly on a central website. Typically, the institution has an employee who is charged with monitoring and fulfilling these requests.
One upside to the portal is that it offers the public an easy, accessible, and transparent way to submit records requests. It can eliminate confusion for individuals who are not familiar with the process and allow the public to view past and outstanding requests. Additionally, it creates a public, date-stamped log of requests, which are required by law to be fulfilled “as promptly as possible.” G.S. § 132-6(a). The public can see what requests have been made, which have been fulfilled, and which are left outstanding and unanswered. (Despite the "as promptly as possible" language in the statute, production of some records has been delayed weeks or months.) It is possible that these portals will make requests easier for a broader group of people, and we always applaud any effort to make records more accessible to the public.
However, institutions that create these portals risk running afoul of the law if they force people to use the portal and refuse to provide records any other way. Because the portal creates an additional hurdle to accessing records that is not contemplated in the Public Records Law, institutions cannot insist that all requests be submitted in this manner. The existence of a portal -- or a requester's refusal to use the portal -- does not relieve “every” custodian of the obligation to produce records under § 132-6(a).
While there are no published North Carolina court cases that speak directly to these new portals, a similar situation arose in Buncombe County several years ago. In Dawes v. Buncombe County Board of Commissioners, the court considered a dispute over Buncombe County's short-lived requirement that everyone direct all written records requests to the county manager. The court noted that while institutions “are entitled to develop reasonable rules, applicable to all citizens equally, governing their production of public records,” the county could not create a gatekeeper through which all requests had to be funneled. The court held that “the term ‘custodian of public records’… refers to the individual who in fact has possession of records, and not to the County Manager other than as to those records which she does in fact have personal possession of, and the [county manager] cannot therefore legally make herself in effect a 'Gatehouse' for access to public records...”
What does this mean in practice? If you are seeking documents emailed by a member of the Charlotte-Mecklenburg Board of Education, for example, you can log your request on the portal at https://cmsk12.nextrequest.com
. But you also can bypass the portal and contact that board member directly with your request. Because that person is accountable under the Public Records Law, the Board member is obligated under § 132-6(a) to fulfill your request in a timely manner. There is nothing to prevent you from submitting your request simultaneously through the portal and directly to a custodian, though this may cause some confusion on a practical level.
The decision to submit your request through a portal or directly to a custodian will vary case by case. If you have a request that would be relatively quick and simple for a known record-holder to fulfill, it may be most efficient to make your request directly to that person. If you have a request that will involve aggregation of data or a significant volume of documents from multiple custodians, you may choose to try the portal first.
Regardless of how you submit your request, the obligations of institutions and custodians remain the same under our public records law. While portals cannot replace traditional direct-to-custodian requests, we hope they might become supplemental tools that will help enhance transparency and increase access to North Carolina public records.
If you know someone interested in information like this, please forward this so they can sign up by emailing First@smvt.com
with “subscribe” in the subject line. We hope this blog will give you helpful information in digestible-sized updates. But if you ever want to stop getting FFR updates, just unsubscribe below.
SMVT telephone: 919-582-2300