April 13, 2017
North Carolina’s public records law provides a broad right of access to records of public agencies. Chapter 132 of the North Carolina General Statutes define the scope of North Carolina’s law. Some basic concepts of the public records law are the following:
- The law applies to records made or received in connection with the transaction of public business.
- The law applies to all types of state and local government agencies, and all types of records, including paper and electronic records, recordings, films, videos, and photographs.
- A record that falls within the scope of the statute is subject to public access unless an exception provides otherwise.
- North Carolina courts have been unwilling to recognize exceptions to the law that are not found in existing Statutes
- The statutory exceptions to the right of access fall into one of two categories: (1) confidential records, which the public agency is prohibited from releasing except under specified conditions, or (2) nonpublic records, to which there is no right of access but which the public agency may release in its discretion.
- The status of a record under the law is determined based on its content, not its location.
- Personal records (not related to the transaction of public business) are not public records, even if they are created using government resources. Records related to the transaction of public business are public, even if they are created using private resources.
- The right of access includes the right to inspect and obtain copies (although a few specific provisions limit some element of access for particular types of records).1
- Anyone can request access; the right is not limited to citizens or constituents of the agency.
- State law limits a public agency’s authority to charge for providing access to records, in most cases allowing a charge only for the actual cost of the paper or other medium, if any, on which copies are provided.
- Requirements for retention of public records are governed by rules promulgated by the State Division of Archives and History, Government Records Branch. These rules apply based on the content, not the form of the record. For example, there is no general rule for retention of email. Instead, the requirements for email records will vary depending on the content of the email.
Any person may examine and obtain a copy of any public record. NCGS Section 132-1 extends the reach of the public records statute to every agency of state and local government in North Carolina.
It is important to note that the public records law only applies to actual existing records. In general, the public has no right to demand that a government maintain records that the government has no need for itself or to demand that a government maintain records in a way the facilitates use of the records by others if that use is unimportant to the government.
Public agencies must prove records in the form in which they are requested, so long as the agency has the capacity to do so. Custodians of records must allow public records to be inspected “at reasonable times and under reasonable supervision” and copies to be provided “as promptly as possible.” The law does not set a specific time within which an agency must respond.
NCGS 132-6 and 132-6.2 expressly permit fees for copies of public records but are silent about fees for the right of inspection only.
The following are exceptions to the general right of access to public records: personnel records, criminal investigation records, legal materials, trade secrets, some local tax records, medical and patient records, closed-session minutes and general accounts, social security account numbers and other personal identifying and personal financial information, records involving public security, contract bid documents and construction diaries, economic development records, social service records, library records, and telephone numbers held by 911 systems.
If you have questions concerning public records, the Freedom of Information Act, or anything else concerning access to public records from any governmental entity (town, city, county, state, and other agencies), please contact King Law in Rutherford County or one of our other convenient locations for a free consultation.