POLICY STATEMENT 152
PUBLIC RECORDS
Prepared by: Chris Simpson, Town Attorney; JoAnne Carlyle, Assistant Town Attorney; Bill Stice, Technology Services Director; Susan Moran, Public Information Officer; and Sue Rowland, Town Clerk
Adopted by Council: 2/8/2007
Effective: 2/8/2007
A. PURPOSE AND APPLICATION
The purpose of this Policy is to assist Town officials and employees in understanding and complying with the public records law, including (1) record retention, (2) record disposition and (3) record inspection, examination and copying (hereafter sometimes jointly “disclosure”) in response to proper public record requests. This Policy is designed to provide guidance only, and in the event of conflict between this Policy and the law, the law prevails. This Policy does not create any new or additional rights or obligations for any person or entity and is not designed to create a higher standard than the laws pertaining to public records establish. For purposes of this Policy, the term “Town officials” or “officials” means all Town Council and board and commission members and “employees” means all Town employees, including temporary and part-time employees. Volunteers and persons working for a temporary employment service (“temps”) are also subject to this Policy, but the Town employee supervising the volunteer or “temp” is also responsible for the public records of such volunteer or “temp.”
B PUBLIC RECORDS
1. PUBLIC RECORDS DEFINED
With very few exceptions, all records, including e-mails, created or received by Town officials and employees while transacting official Town business are public records and must be retained, stored, disposed of, and made available to the public in accordance with the law. Records in officials homes and on home or personal computers are often covered by the public record law. The law is primarily contained in N.C.G.S.132-1 through N.C.G.S. 132-10 and cases interpreting those statutes. (N.C.G.S. 132-1 et. seq. can be viewed at the following site:
http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByChapter/Chapter_132.html.)
N.C.G.S.132-1 provides that public records are:
(a)ll documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data‑processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business…
Public records, therefore, include paper and electronic documents, photos, videos, maps, computer files, and computer communications, including e-mails. (The term “record” used throughout this policy refers to all such “public records” including e-mails). Unless the purpose and content of a record is personal in nature and not related to the transaction of Town business, it is a public record and should be treated, retained and disclosed in accordance with applicable law and this policy.
There are certain records that are exempted from the definition of “public records” and there are certain public records that do not have to be disclosed, however. The record may be a protected or confidential record (“protected record”) if there is a federal or state statute or some other legal authority for exempting it from the definition of public record or protecting it from disclosure. Generally, protected records are those that fall within one of the specific legal exemptions set forth in the General Statues. (See B.5., Protected Records and N.C.G.S. §132-1.1, §132-1.2, §132-1.4 and § 160A-168 for a list of some protected records.)
2. RETENTION AND DISPOSAL OF PUBLIC RECORDS
The law requires that public records be retained in a manner that allows public access, and not destroyed, for specific periods of time. Retention means retaining until obsolete, superseded, or until its administrative value is lost. This means that each Town official and employee is responsible for maintaining and managing the public records they create or receive, including their e-mails. The person who would normally be responsible for maintaining the project or subject file to which the record(s) relates (“file custodian”) likely has the duty to maintain the record(s) as required by law. However, the person who creates a record or is the primary recipient of a record should be responsible for that record unless he or she receives assurance that the file custodian is maintaining that record in the file. (See B.6. “RESPONSIBILITY FOR THE RECORD” which designates each department director of the Town as the official “custodian” of all records in his or her department for purposes of records requests but makes clear that every employee and official is responsible for record retention and disclosure of records they create or of which they were the primary recipient.)
As to all records, the Town follows the information and guidelines provided by the North Carolina Department of Cultural Resources, including the Department’s Municipal Records and Retention and Disposition Schedule. See “Disposition Schedule” at:
http://www.ah.dcr.state.nc.us/records/local/default.htm#mu
Town officials and employees are directed to review the Disposition Schedule and refer to it as necessary. All records should be managed to meet all retention requirements set forth in Disposition Schedule and legal requirements.
Public records can and should be destroyed after they have been retained for the correct time period as determined by the Disposition Schedule unless there is some other reason that record should be retained, such as an outstanding record request, court subpoena or court order, or some state or federal law or grant requirement. Additionally, if litigation is pending or threatened, records pertaining to the litigation must not be destroyed. After the retention period set forth in Disposition Schedule is met, records may be purged in accordance with the guidelines set by the North Carolina Cultural Resources Department, which are included in the Disposition Schedule. A public record that is not properly purged remains a public record and must be disclosed upon proper request or upon receipt of a subpoena. Having a plan for the destruction of records eliminates obsolete records and saves resources by not indefinitely and unnecessarily storing records beyond appropriate retention periods.
[NOTE: Remember, if you decide to retain records beyond the retention period set forth in Disposition Schedule, you must disclose them upon proper request, even if you would no longer, by law, be required to have the record. For example, if the Disposition Schedule requires that you maintain a record for two (2) years and, when the document is aged three (3) years, you receive a public records request or a court order that includes this record you must disclose that record. If litigation is threatened or commenced about a matter to which the record pertains, you may not destroy the record.]
Any record that is retained electronically should be maintained in a secure system that controls access, storage, retrieval, alteration, and deletion. Each official and employee must set up their own retention procedures, including appropriate backup, to assure compliance with the law.
Some records are “transitory” and although they are public records, they do not have to be retained after they serve their immediate administrative value. (See B.3.“TRANSITORY RECORDS”.)
Records that are ephemeral, temporary, or transient in nature and have only short-term administrative value are considered transitory records. Transitory records are public records, but because of their nature, they do not have to be retained. Transitory records include, without limitation, messages with short-term or no administrative value such as many, but not all, voice mails, self-sticking notes, facsimile cover sheets that do not contain substantive information, and telephone messages. Transitory records are records that are created primarily for the informal communication of information and not to perpetuate or formalize knowledge. Transitory records frequently simply notify recipient(s) that information is attached or forthcoming. Transitory messages do not set Town policy, establish guidelines or procedures, discuss a Town business matter, discuss a decision, certify a transaction, or act as evidence of receipt. (Certified or registered mail return receipts that contain important information about the names of the sender/recipient and pertinent dates are not transitory.) Transitory records may be treated as having a reference or administrative value that ends when you no longer need the information in the record. Under the law, transitory records may be erased or purged when their reference value has ended. However, if a record request is received for a transitory record before that transitory record has been erased or purged, that transitory record must be disclosed.
4. DRAFT RECORDS
If you are drafting a document and have not yet circulated the document to others for review or comments, it likely is a draft document that has not yet matured to public record status. Such documents would likely not have to be disclosed if there were a public records request. However, once a draft document has been circulated to others it becomes a public record.
To avoid misunderstandings that can sometimes arise from public circulation of discussion drafts, consider labeling each page of draft documents that you circulate to others with “DISCUSSION DRAFT ONLY.” This can be done by going to the Format menu, pointing to “Background” and clicking on “Printed Watermark”. Then, click on “Text Watermark”, and type in as the text: “Discussion Draft Only.”
5. PROTECTED RECORDS
There are records that are exempted from the definition of “public records”, and there are public records that do not have to be disclosed upon a public record request. Records that are exempted from the definition of public records and records for which there is statutory authority permitting or requiring that they not be disclosed are referred to in this policy as “protected records”. Some of the statutory exemptions that exempt or protect records from disclosure include:
- Exempted records (records that are not public records) include:
- confidential communications within the scope of the attorney-client relationship as defined in N.C.G.S. 132-1.2 (that become public records in three years)
- Public enterprise billing information, as provided in N.C.G.S. 132-1.1.
- Controlled substances reporting system information as provided in N.C.G.S. 132-1.1 (which may be released only in accordance with The Controlled Substances Act).
- Criminal investigation records and records of criminal intelligence information, as provided in N.C.G.S. 132-1.4 (note that certain information pertaining to violations of the law and arrests and indictments, and certain content of ‘911’ calls are public records).
- 911 data base information, if required by agreement with the telephone company as provided in N.C.G.S. 132-1.5.
- Sensitive public security information, including specific details of public security plans and arrangements, detailed plans and drawings of public buildings and infrastructure facilities, and certain plans to prevent and respond to terrorist activity, as provided in N.C.G.S. 132-1.7, and technology security information.
- Other records for which statutory exemptions apply.
- Records protected from disclosure:
- Personnel files of employees, which includes any information gathered by the Town with respect to an employee are protected, except that certain information like name; age; date of original employment or appointment; current position title; current salary; date and amount of the most recent increase or decrease in salary; date of the most recent promotion, demotion, transfer, suspension, separation, or other change in position classification; and the office to which the employee is currently assigned, is specifically made public, (N.C.G.S. 160A-168).
- “Tax information” pertaining to a taxpayer’s income or gross receipts may not be disclosed, as provided in N.C.G.S.132-1.1, except as provided in N.C.G.S. 160A-208.1 which permits disclosure to comply with a law or court order; for review by the Attorney General (“AG”) or representative of the AG; and to sort, process or deliver tax information for the Town to administer a tax.
- Social security numbers and personal “identifying information” is confidential and unlawful to disclose to the public. You must check with Human Resources before collecting any social security number. If a social security number is lawfully collected, it must be segregated on a separate page, or as otherwise appropriate, from the rest of the record, as provided in N.C.G.S. 132-1.10. In addition to social security numbers, “personal identifying information” includes: employer taxpayer identification numbers; drivers’ license numbers (except in cases where the number appears on a non-protected law enforcement record), state identification card numbers and passport numbers; checking, savings, credit, and debit account numbers; personal identification code (PIN) numbers used to access financial resources; digital signatures; any other numbers or information that can be used to access a person’s financial resources; biometric data; fingerprints; and passwords; all as provided in N.C.G.S. 132.1.10 and G.S. 14-113.20.
- Trade secrets and electronic payment account numbers (see “identifying information’ above for protection of account numbers) are protected as set forth in N.C.G.S. 132-1.2. (Note that to protect a “trade secret” detailed requirements must be met.)
- Certain “trial preparation materials” is protected as provided in N.C.G.S. 132-1.9.
- Names and addresses of complaining witnesses to crimes must be temporarily withheld if release of the information is reasonably likely to pose certain threats to the witness or materially compromise the investigation, as provided in N.C.G.S. 132-1.4.
- Certain economic development incentives are temporarily protected, but the Town must make certain prior disclosures to applicants, as provided in N.C.G.S. 132-1.11.
All of the above are "protected records”. Note that there are other protected records, including records concerning juveniles. Protected records should not be disclosed, and in some cases must not be disclosed. Just as Town employees and officials have a duty to disclose records, they have a duty to protect the privacy of protected records. In particular, a social security number must never be released as part of a public record. Make efforts not to commingle protected records with other records. Records, including e-mails, that contain a mix of public records and protected records must be disclosed but the protected information must first be removed (if on a separate sheet) or obscured and made illegible (‘redacted’). (See C.4. “REDACTION” for methods of obscuring protected information.) When in doubt as to whether a record is a protected record, employees and officials should consult with the Town Attorney’s Office. Consulting with the attorney has advantages in the event you determine the record is protected and you do not disclose it, and there is a legal challenge. (See Penalties.)
6. RESPONSIBLITY FOR THE RECORD
The law provides in N.C.G.S. 160A-171 that the Town Clerk is the custodian of all Town records and in N.C.G.S. 132-2 that “public official in charge of an office having public records shall be the custodian thereof.” One purpose of this Policy is to establish a mechanism whereby the employees and officials who create and receive records understand that they are primarily responsible for assuring that the records they create and receive are properly managed, retained and disclosed. To that end, the following responsibilities are established:
a. Officials and employees are the “primary record custodians” of all records they create or receive.
b. Each department director is the “official custodian” of all records created or received in his or her department. The Town Clerk is the “official custodian” of all records created or received by Town Council members. The secretary to the board/commission is the “official custodian” of all records created or received by board or commission members.
c. Every “primary record custodian” is responsible for managing, retaining and disclosing their records in accordance with the law.
d. Every “official custodian” is responsible for assuring that retention and disclosure requirements are complied with for the records of their department. Official custodians shall establish and maintain management, retention, and disclosure practices for their departments consistent with this policy and the law. Official custodians shall receive records requests for records of their department and assure that the appropriate primary record custodians disclose the records. To facilitate the management and retention of the records of town officials:
(i) Town Council members may forward to the Clerk all electronic communications received and “cc” the Clerk on all electronic communications sent. Once received, the Town Clerk shall maintain, retain, and disclose such records upon a records request. Town Council members remain responsible for, and shall maintain, retain, and disclose all records not forwarded, or “cc’d” to the Town Clerk in accordance with this policy.
(ii) Board and commission members may forward to the secretary of their respective board or commission all electronic communications received and “cc” the secretary on all electronic communications sent. Once received, the appropriate secretary shall maintain, retain, and disclose such records upon a records request. Board and commission members remain responsible for, and shall maintain, retain, and disclose all records not forwarded, or “cc’d” to the board secretary in accordance with this policy.
Town employees and officials should not unnecessarily create or maintain multiple copies of any record, regardless of its medium. For example, if ten (10) photographs are taken for purposes of retaining one or two acceptable photos for business purposes, then the unsatisfactory photos are likely transient records and should be purged. Maintaining duplicates and transient records results in unnecessary expense to the Town and creates a burden on the computer network. In the example given, if 10 unnecessary photographs are retained it has the undesired effect of possibly creating 10 new records. As to copies of records received or maintained by more than one person, if you are able to obtain assurances that the file custodian of the main project file, subject file, or case file (jointly “main file”) will include your record in the main file and become the record’s primary custodian, then you may not need to personally retain that record.
In the case of e-mails, the custodian of the main file to which the e-mail record pertains may keep that e-mail record in the main file. However, you are responsible for assuring that the custodian of the main file has the complete e-mail record. (See D.3. E-MAIL RETENTION for discussion of the complete e-mail record)
7. RECORDS OF DEPARTING EMPLOYEES AND OFFICIALS
Employees who terminate their employment with the Town should deliver all records to their successor, or to the department director. Officials who leave elected or appointed office should deliver all records to their successor, or to the Town Clerk. Records must not be destroyed simply because the relationship between the records custodian and the Town ends. Failure to deliver records to one’s successor is a class one criminal misdemeanor.
C. PUBLIC RECORD REQUESTS
1. RESPONDING TO A LEGITIMATE PUBLIC RECORD REQUEST
The law requires every record custodian to permit any public, non-protected record in the custodian's custody to be inspected and examined at reasonable times and under reasonable supervision by any person, and, as promptly as possible, to furnish copies thereof upon request and payment of any fees as may be prescribed by law and Town ordinance. (See C.3. “FEES” below for a discussion of the permitted charge for a requested record.)
Persons requesting a record cannot be required to disclose their purpose or motive for wanting the record, nor can they be required to give their name or address or show an ID, or sign for a record.
Upon the receipt of a public record request the record requested must be disclosed unless it is protected. No record request may be denied because protected information is commingled with the non-protected part of the record. If it is necessary to separate protected information from the rest of the record in order to permit the inspection of a record, the custodian must make that separation. (See C.4. “REDACTION” for methods of separating information.)
Persons making public record requests should be directed to the department director in whose office the sought after record is kept. Public record requests for records of Town Council members or board or commission members should be made to the Town Clerk, who will forward the request to the appropriate official for handling and response.
When a public record request is received, the department director (or designee) who receives the request should confirm that the requester has fully and clearly identified the record(s) sought. Asking for, but not requiring, the request to be in writing may facilitate obtaining clear requests. (A request for copies of a computer database must be made in writing.) The department director or Clerk, if not the custodian, should forward any public record request to the primary custodian. If the primary custodian will not be in a position to make the record(s) available within two business days of the date of the request, the director or primary custodian should, within those two business days, notify the record requestor in writing of the approximate time it will take to make the record(s) available. The custodian should make, or direct, a thorough search for the record and provide a prompt response. Responses are: (1) make the record (redacted, if necessary) available for inspection or copying; (2) if there is no record, provide a statement that you “as custodian” have made a search of the records in your custody and have found no record; or (3) if the request, or portions thereof, is denied, provide an explanation of the basis for the denial. In some cases, the record custodian may be able to simply forward a copy of the requested record(s) to the requester. In other cases, the custodian may make the records available for inspection and thereafter only copy those records identified for copying by the requester. Copies of public records should be provided to the requesting party in the medium of the requester’s choice, provided that the Town is capable of satisfying the request in that particular medium (i.e. computer disk, paper, digital video disk, electronic copy, etc.). During inspection and copying the employee or public official should take all efforts to ensure that the records are not at risk of being lost, damaged, or destroyed.
The Public Information Officer should be immediately advised of any records request from the media.
2. CREATION OF RECORDS IN RESPONSE TO A PUBLIC RECORDS REQUEST
The law does not require custodians to create a record to satisfy a record request. If there is no record that meets the record request, simply respond that there is no record. The response should be in writing explaining that a search of the records in your custody has located no such record.
3. FEES
The law permits the Town to charge a fee for an uncertified copy of a record that recovers the actual cost of duplicating the record. The fee, if imposed, is to be set forth in the Town of Cary’s Annual Budget Fee Schedule. If copying the public records requires extensive use of information technology resources or clerical and/or supervisory assistance, the Town may assess a reasonable service charge based on the Town's actual incurred costs. An estimate of the charges should be given to the requester and approval obtained prior to responding to the request. All fees and charges should be collected before producing the records or at the time the records are delivered.
4. REDACTION
If a record subject to a public records request is a protected record, you likely will not have to make that record available for inspection and copying. In some cases, however, a public record will contain information that is protected, but the entire record is not protected. In those cases, the protected information should be deleted in a manner that shows that a deletion was made. For example, if the record is a printed record, make a copy of the record and tape over the protected information with white correction tape, then use a black painter pen to completely mark over the tape. The marked up record should then be copied and the new redacted copy only made available for inspection and copying. There have been cases where simply marking over protected information with a black felt-tipped pen did not sufficiently obscure the protected information beneath, even after copying.
It is the custodian’s responsibility to see that protected information remains protected. If a custodian is providing an electronic copy that includes protected information that must be redacted, he or she should either cut and paste or export and edit to protect the protected part of the record.
5. PENALTIES
If a court finds that a custodian acted without substantial justification in denying access to a public record and if there are no special circumstances that would make the award of attorneys’ fees unjust, a court is authorized to award reasonable attorneys’ fees against you, to be paid personally by the custodian [See N.C.G.S. §132-9(c).] If a Town employee or official follows the advice of legal counsel in denying a public records request, the court will not subject the employee or official to being individually responsible for the other party’s attorneys’ fees. For this reason, if employees or officials have doubts about the protected status of a record or denying a records request, they should consult the Town Attorney’s Office.
D. E-MAIL RECORDS
1. E-mails that transact Town business are public records, and all of this Policy applies to e-mails that are records. However, there are some retention issues that apply uniquely to e-mails.
2. CONFIDENTIAL E-MAIL RECORDS AND PERSONAL E-MAILS AND INFORMATION
a. Personal E-mails and Information. Limited personal use of Town technology resources is permitted in accordance with the Town’s Technology Appropriate Use Policy (Policy Statement #113). However, there is no assurance of confidentiality or protection of personal or confidential information related to such use. For instance, the Town has the right to review information on its computers as necessary and in addition, in fulfilling a public records request, personal or confidential information may be inadvertently released. Town employees and officials who use the Town’s computers for personal matters do so at their own risk.
b. Protected Information. Policy Statement #113 stipulates that:
no confidential Town of Cary information may be transmitted electronically without the prior approval of the Town Manager. If the employee is uncertain about whether it is appropriate to electronically send a particular piece of information or not, he or she should err on the side of caution and obtain approval from his or her supervisor or department director before sending.
Protected information should not be placed into or attached to e-mails, and protected records should not be transmitted by e-mail.
3. E-MAIL RETENTION
If an e-mail pertains to Town business, it is a public record. However, many e-mails are transitory records (see 3.B., “TRANSITORY RECORDS”), do not need to be retained, and should be disposed of in accordance with this Policy. If an e-mail sets policy, establishes guidelines or procedures, discusses a Town business matter, discusses a decision, certifies a transaction or is intended to act as evidence of receipt, then it is a record that must be retained and managed. Retaining e-mails includes capturing and maintaining the necessary metadata about the e-mail records. E-mail records should have all the information necessary to ensure their long-term usefulness and the ability to retrieve them as needed.
As noted in B.6 RESPONSIBILITY FOR THE RECORD above, the custodian of the main file to which an e-mail record pertains may keep that e-mail record in the main file. However, if you send or receive an e-mail, you are responsible for assuring that the custodian of the main file has the complete e-mail record. For instance, if you sent an e-mail to the main file custodian on which you also “blind carbon copy” (“bcc”) another person, the main file custodian would not have the complete e-mail record because the “bcc” would not show up on their electronic copy of the e-mail. Similarly, if you forward an e-mail to someone not on the recipient list of the e-mail version that the main file custodian has, then the main file custodian does not have the complete e-mail record. It is the responsibility of the official or employee who is relying on a main file custodian to retain an e-mail record to see that the main file custodian has the complete e-mail record, which includes all the transmission and routing information, or that official or employee remains responsible for maintaining the e-mail that reflects the complete record. You may be able to satisfy this obligation by providing a printed copy of the complete e-mail record to the file custodian. For purposes of illustration, officials who are cc’d on an email, unless they are the custodian of that main file, probably are not required to keep a copy of the e-mail. However, the sender or bcc recipient of a bcc’d e-mail are deemed to be custodians of that e-mail and must retain it or assure that one of them retains it or that the main file custodian maintains the complete record in the main file.
An e-mail that is retained as a public record should be complete. The text/body of an e-mail alone is not enough. Complete e-mail records should include the following elements (“complete e-mail record”), as applicable:
- Name of Sender;
- Name of Recipient(s) including those bcc’d;
- Subject Matter;
- Text of Body (actual message);*
- Date and Time sent;
- Complete attachment(s). If the e-mail had an attachment, the attachment is part of the e-mail record and should be included in full (not just indicated by file name);
- Metadata. Metadata is “data about the data” and includes information about the creator of the e-mail, the creation date and the names of the recipients.
4. E-MAIL MANAGEMENT
You can comply with the retention and management requirements of the public records law by doing one of the following:
a. Print the complete e-mail record, created or received, and store the printed copy in the main file as you would any other printed record. Printing the e-mail record and retaining in the main file permits you to keep all information on a particular project or subject matter in one location, enhancing its historical and archival value.
b. Electronically store the complete e-mail record according to the conventions of your e-mail system, and retain it electronically pursuant to the lawful retention schedules.
E-mail records must be retained by their custodian in a manner that is complete and allows access for the applicable retention period. (The length of time a record must be retained is set by the Disposition Schedule and is determined by the type of record.) E-mail records should not be left in your computer’s in-box, sent box, draft box or trash areas of the e-mail system. Instead, the complete e-mail record should be filed in more permanent storage methods on the computer such as in appropriately named folders or printed out, assuring that all metadata is displayed, and filed appropriately. If retained electronically, e-mail records must meet the electronic retention requirements described in B. 2. above.
E. RECOMMENDATIONS