OBTAINING PUBLIC RECORDS AND DOCUMENTS by Employment Law Attorney M. Travis Payne (originally published July 9, 2014)
OBTAINING PUBLIC RECORDS AND DOCUMENTS
Prepared By: Workers Compensation Attorney M. Travis Payne Employment Lawyer
There
are times when you may want to get copies of a variety of records or documents
that a city, county, or state agency maintains.
This may be as part of the efforts of a citizens’ organization, or for
an issue that is of personal interest to you.
Some documents that you might want to obtain could include operating
procedures, policies of the city or county, pay plans or pay scales for a city
or county, statistics on emergency calls and responses, reports prepared for
the county or city either internally or by an outside consultant, the minutes
of a closed council meeting, or maybe financial records regarding expenses paid
by the city or county for officials to go on some “junket” to a conference in
Las Vegas or wherever. All of these
records or documents should be available in response to a proper request under
the Public Records Law, which is Chapter 132 of the General Statutes. Things such as video or audio recordings made
by public agencies are also covered and should be available. Indeed, it is now clear that emails sent or
received by public officials (and that could include emails that employees send
from their “company” computers or phones), are subject to production in many
cases as public records.
The
Public Records Law does not require any public agency to answer questions or
compile information. That is a mistake
that I have seen citizens make, and all they get is a response from a public
official that the city or county is not required to provide the information,
with no further information or explanation.
For example, a request that the city tell you what the average response
time was for Fire Department first responder calls in the year 2011, is not a
valid public records request. Likewise,
a request that the city tell you how much it cost the City to send the Mayor on
a convention “junket” to Las Vegas would also not be a proper request. What you ask for is the documents that would
have the information that you are seeking.
For the example of the costs for the Mayor’s junket, you should ask for
any and all invoices, reimbursement forms, receipts, or other documents or
records concerning or pertaining to amounts paid from City funds for travel,
lodging, meals and other expenses for the Mayor in conjunction with the
convention that she attended in Las Vegas during the period of about October 10
- 14, 2016. You can then total up the
expenses from the documents. In general,
nearly all matters that involve the expenditure of public funds, must be a
matter of public record, and you have to be given copies of the records
reflecting those expenditures if you ask.
Often
when a public records request is made, a government official will want to know
“why do you want these?” You do not
have to tell anyone why you want the records.
General Statue Section 132-6(b) specifically states that “No person
requesting to inspect or examine public records, or to obtain copies thereof, shall
be required to disclose the purpose or motive for the request.” Thus, when you make a request, there is no
reason to put in your request any reason or justification for the copies that
you want. Likewise, if you get asked by
an official why you want the documents, you need to quote to them the language
of G.S. Section 132-6(b), and tell them it is none of their business.
You
should make every public records request in writing. Generally I would submit it to the head of
the department or to the city or county manager, or both. A sample letter is below:
To:
Chief J. D. Hard
From:
Fire Engineer Joe Blow
Re:
Public Records Request
Date:
_____________
Pursuant to the Public Records Law,
Chapter 132 of the General Statutes, I request copies of any and all letters,
memos, notes, or emails generated or received by any official or supervisor of
the Fire Department at any time since January 1, 2016, concerning the following
matters:
Transfers of fire suppression
personnel from one station and/or shift to
another.
I am willing to pay reasonable
minimal copying costs for these documents as provided by the Public Records
Law. Please let me know when I can pick
up the documents.
Thank you for your assistance with
this matter.
If
you really want to get into the “electronically stored information” that most
public and private entities now generate and store, the request can become
fairly complicated. The text of a
request that I sent to the City Manager of Raleigh in late 2011, on behalf of
the Raleigh Police Protective Association (RPPA) as a result of retaliatory
actions taken against leaders of that organization is below:
Pursuant to Chapter 132 of the
General Statutes, the Public Records Law, I request copies of the following
records or documents:
Any and all notes, memos or other
records or documents concerning or pertaining to communications to, from, or
among employees or officials of the City, including employees and officials of
the Police Department, that in any way reference or relate to the Raleigh
Police Protective Association or any of the actions taken or statements made by
representatives of the Raleigh Police Protective Association.
Any and all emails or text messages
sent or received by any employees or officials of the City, including employees
and officials of the Police Department, on electronic devices owned or operated
by or on behalf of the City, that refer to or pertain to the Raleigh Police
Protective Association or any of the actions taken or statements made by
representatives of the Raleigh Police Protective Association. Given that these communications and
electronically stored information may not specifically use the term “Raleigh
Police Protective Association”, I request that whoever is placed in charge of
conducting or supervising the search of data files consult with me regarding
the search terms to be employed.
This request covers the time period
from August, 2007, through the present. To the extent that any documents or
records that are responsive to this request are withheld on some ground of
“privilege” or other basis, I request that I be informed of the legal
justification for withholding the document or record.
To the extent that the records are
produced in paper form, I am willing to pay reasonable copying costs. However, I presume that it may be simpler
and more efficient to produce these records in electronic files. If they are produced in that fashion, the
files can be attached to emails and sent to my email address, eandp@mindspring.com, or provided on a CD or other appropriate storage
device.
While
G.S. Section 132-6.2 requires that copies of public records be made for
reasonable costs, which shall not exceed “the actual cost to the public agency
of making the copy”, that provision does allow the agency to charge “a special
service charge” where the request requires “extensive use of information
technology resources”. If you are going
after emails or information that may be on computer hard drives or servers, you
may incur some substantial expenses.
Thus you should think about ways to limit the request. As indicated in both of the sample requests I
have set out above, you should nearly always limit the request to a specific
time frame, such as from August, 2007, as I did in the RPPA request. You may even want to limit the request to
specific management personnel, such as the head of a department and their
immediate subordinates.
The
Public Records Law does not really have specific time deadlines for a public
agency to produce the records requested, indicating generally that the
production should be made within a “reasonable time”. I would suggest that in any written request
for public records, you ask that the records be produced “as promptly as
possible” (this is a phrase that appears in several places in the Public
Records Law), and in general not later than a specific date that you put in the
letter, which I would say should be about 2 weeks after the date on the
request. The agency may often ignore
your deadline, but it gives you something to negotiate with if the process
drags out.
There
are some specific exemptions from production of records in the Public Records
Act, and you may want to be aware of those.
Additionally there are exemptions from production of records under the
Public Records Law spread throughout many other statutes, and those exemptions
are not all that easy to find. In
general I would not initially be concerned about any exemptions. If the agency to whom you have made a request
for records thinks that what you have requested is exempt, they are supposed to
tell you that and tell you why. If they
cite a statute that they say exempts the records that you want from the law,
you can then go and look at it to see if they are justified in refusing to give
you the records.
Information about public employees
that can be obtained
While
General Statute Sections 160A-168 and 153A-98 make the personnel file and
documents of a city or county employee confidential and not subject to
production under the Public Records Law, there is some specific information
about each employee that the city or county is supposed to maintain in a
separate file that is to be available upon request. The information that must be made available
is set out in Sections 160A-168(b) and 153A-98(b). That information includes the employee’s
name, age, date of employment, current position, title, current salary, date
and amount of each increase or decrease in salary, and the “office” to which
the employee is currently assigned.
Under
some fairly recent amendments to G.S. §160A-168 and 153A-98, additional information
and even some documents are now considered “public records”. This includes the date and type of each
promotion, demotion, transfer, suspension, or other change in “position
classification”. With respect to
promotions, the municipality must provide a “”general description of the
reasons” for the promotion. If
dismissal, suspension or demotion is carried out for disciplinary reasons,
there is an argument that the municipality must provide the reason for the discipline. If the disciplinary action is a dismissal,
the written notice of the final decision setting forth the basis for the
dismissal is now a public record and can be obtained.
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