northcarolina

North Carolina

North Carolina has long been deemed one of the best states for access to electronic records by journalists who do computer-assisted reporting. In a recent study by the Marion Brechner Center at the University of Florida, North Carolina and Iowa were rated the top states as far as access to computerized information. In a couple of instances, federal agencies asked state agencies to withhold information that they thought would be exempt under the federal Freedom of Information Act, but was not exempt in North Carolina. In addition, agencies are required to provide indices of their databases — a great starting point for a reporter wanting to use data on the beat.

Although access to data is much better in this state than in some others, reporters still experience difficulties. Reporters still face the argument that if an agency has to write a computer program to retrieve a record, it is creating a record, which is not required by law.

The law. The Public Records Law defines records to include "magnetic or other tapes, electronic data-processing records, . . . or other documentary material, regardless of physical form or characteristics." N.C. Gen. Stat. § 132-1 (1993). The law requires agencies to permit inspection and examination of records "at reasonable times." § 132-6. Requesters may receive copies in any media in which the public agency is capable of producing them. N.C. Gen. Stat. 132-6.2(a) (1998). However, an agency does not need to create a record in a format in which it does not already exist. § 132-6.2(c). No records custodian may deny a request for records in a particular medium on the grounds that the custodian has made or prefers to make the records available in another medium. § 132-6.2(b). Each state agency is required to create an index of computer databases created or compiled by it. § 132-6.1(b). Persons requesting copies of computer databases may be required to make or submit the request in writing. The agency receiving the request shall respond "as promptly as possible." § 132-6.2 (c).

Cases & opinions. It is lawful for a county tax official to provide a requester with a computer tape containing information relating to about 164,000 parcels of land. The information also may be provided "on computer screen, terminal or other form." Greensboro News & Record, Inc. v. Guilford County, 92-CVS-7139 (N.C. Super. Ct. 1993). Databases maintained by the departments of transportation and administration are public records, and other executive agency databases may be included after a nine-month test period. When public and exempt information is "commingled" in a single database, the burden of separating the information falls on the government. Copies may be requested in any format. Exec. Order 37 (Jan. 28, 1994).

The courts ordinarily construe legislative silence with regard to the confidentiality of a record to constitute an intention by the legislature to make the record a public record. See News and Observer Publishing Co. v. Poole, 330 N.C. 465, 474, 412 S.E.2d 7, 13 (1992).

In June 2000, legislation amended the law to provide that the identity of a state law enforcement officer making a traffic stop and the location of the stop must now be collected and maintained. See CH. SL 00.0067. Section 17.2(a) amends N.C. Gen. Stat. § 114-10(2a). It further provides that "[t]he identity of the law enforcement officer making the stop . . . may be accomplished by assigning anonymous identification numbers to each officer" and that "[t]he correlation between the identification numbers and the names of the officer shall not be a public record and shall not be disclosed by the agency except when required by order of a court." The identity of the officer is not a public record. The location of the stop, however, is part of the public record. N.C. Att’y Gen. Adv. Op. 472 (July 20, 2000); Traffic Law Enforcement Statistics; Public Records; G.S. § 114-10(2a)

A party has requested the ESC to replace the confidential Social Security numbers with a nonidentifying code in order to allow the analysis of the data without revealing confidential, personally identifiable information. Nothing in the General Statutes would require the ESC to comply with such a request. N.C. Gen. Stat. §132-6.1(c) specifically addresses the issue of creating new databases: "[n]othing in this section shall require a public agency to create a computer database that the public agency has not otherwise created or is not otherwise required to be created. .." Therefore, the ESC is not required to replace the Social Security numbers with a different uniform identifying character, to do so would be to create another database that the ESC "has not otherwise created or is not required to be created." § 132-6.1(c). Re: Advisory Opinion 433, Sept. 20, 1999; Public Records: § 132-1 et al; Release of data from the Common Follow-Up System: § 96-33

A list of employees or former employees of the Department of Motor Vehicles who are receiving disability income must be released. "The only information it provides is the name of the individual and the amount of money he or she is receiving as disability income. It gives no particulars as to the type of disability or the reasons why the individual was placed on disability. For reasons which follow, such a list is a public record which should be released." N.C.G.S. §126-22 provides that the "(p)ersonnel files of State employees, former State employees, or applicants for State employment shall not be subject to the inspection and examination (as public records) as authorized by G.S. 132-6." This section then defines what personnel file information consists of. Advisory Opinion 298, March 18, 1997; Public Records; Employee Personnel Information; N.C.G.S. §§ 126-22 and 126-23

A personnel file consists of any information gathered by the department, division, bureau, commission, council, or other agency subject to Article 7 of this Chapter which employs an individual, previously employed an individual, or considered an individual’s application for employment, or by the office of State Personnel, and which information relates to the individual’s application, selection or nonselection, promotions, demotions, transfers, leave, salary, suspension, performance evaluation forms, disciplinary actions, and termination of employment wherever located and in whatever form. N.C. Gen. Stat. § 126-22. Advisory Opinion 298, March 18, 1997; Public Records; Employee Personnel Information; § 126-22 and 126-23.

Fees. The statute requires an agency to provide "certified copies . . . on payment of fees as prescribed by law." N.C. Gen. Stat. § 132-6 (1993). An agency may charge a "reasonable" fee to compile records in a format not already available if it voluntarily elects to provide records in an otherwise unavailable format. § 132-6.2(e) (1998).

Agencies may charge the actual costs of providing uncertified copies of public records. "Actual costs" are limited to direct, chargeable costs related to the reproduction of a public record and include only costs incurred as a result of the request. Additional fees may be charged for requests requiring extensive use of resources or staff assistance so long as they are reasonable and are based on expenses that are actually incurred. § 132-6.2(b).

In a ruling that the public has access to real estate records, the court refused to determine the appropriate fee for the information on computer tape. However, the court said the issue involved determining "the appropriate charge per record for the computerized records." Greensboro News & Record, Inc. v. Guilford County, 92-CVS-7139 (N.C. Super. Ct. 1993).

GIS. Counties and cities must provide access to geographic information systems databases and data files by public access terminals or other output devices. A recipient of an electronic copy of such data must agree in writing not to resell the copy or otherwise use it for commercial purposes. News media requesters do not have to make such an agreement. Copies of records in the database are to be made available at a reasonable cost. § 132-10. The statute allows for the assessment of a "reasonable cost" for GIS records.

E-mail. E-mail is not expressly addressed in the Public Records Law but would fall within the definition of a public record, which includes any "documents, papers, letters, . . . regardless of physical form or characteristics." § 132-1(a). Advisory opinions from the attorney general also indicate that e-mail would be treated as any other correspondence.

Each legislator is properly treated as the custodian of his or her e-mail communications whether directly available in the legislator’s computer or stored in the legislature’s computer system. We are unable to determine the legal status of communication solely between legislators about redistricting and recommend that the General Assembly address the issue.(Att’y Gen. Adv. Op. Public access to legislator’s redistricting communications, custodians of records (Feb. 14, 2002) N.C. Gen. Stat. § 129-133; N.C. Gen. Stat. § 132-1, et seq.

Software. In 1998, the Attorney General’s office rescinded an opinion finding software to be a public record and opined instead, "[W]e are of the opinion that such software is not a ‘record’, and, additionally, its disclosure may cause a breach in software security inconsistent with N.C. Gen. Stat. § 132-6.1(c)." 1998 WL 459785, *1 (N.C.A.G.). The opinion concludes, "the explicit language of § 132-6.1 distinguishes software used to generate records from records it generates. Thus, we are of the opinion that in light of current law, the General Assembly did not intend to mandate disclosure of State-owned computer software pursuant to §132-1 et seq."

Resources. North Carolina Advisory Opinions