OBTAINING PUBLIC RECORDS AND DOCUMENTS by Employment Law Attorney M. Travis Payne (originally published July 9, 2014)

Lawyer Sign 315 Edelstein & Payne Workers Compensation attorneys at law Raleigh, NC 27601


                
  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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