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when they
tell you ‘no’
Editor’s note. The following is written by Amanda Martin, general counsel for the North Carolina Press Association. Martin’s column tells how citizens can ask the appropriate questions to get access to public information when they are denied.
The North Carolina Open Meetings Law and Public Records Law are not just for newspapers and other media -- they are citizens’ laws as well. With County Manager Jim Varner’s efforts to make public information more difficult to obtain, we thought it appropriate to run Martin’s latest column in the North Carolina Press Association’s newsletter, which is published below. It is entitled, “What to say when they tell you ‘no.’”
They say: That’s confidential, private or privileged.
You say: Please direct me to the specific provision of the law that you believe permits you to withhold the document. The N.C. Supreme Court and Court of Appeals have repeatedly ruled that the “public records act grants public access to documents … absent a specific statutory exemption.”
They say: That document isn’t final.
You say: That’s okay; stamp it draft. The N.C. Supreme Court has held that “draft reports … are subject to disclosure under the Public Records Act.”
They say: You can’t have that because of the Driver’s Privacy Protection Act.
You say: Unless you are the Division of Motor Vehicles, you must give me the record. Only the DMV is covered by the DPPA.
They say: You can’t have that because it is part of a criminal investigation.
You say: The Public Records Law says, “The use of a public record in connection with a criminal investigation or the gathering of criminal intelligence shall not affect its status as a public record.”
They say: That’s protected by HIPAA.
You say: Only “covered entities” – health care providers, insurance companies, and other organizations that handle health care information electronically — are subject to HIPAA.
They say: That will be $1 per page.
You say: You may only charge me the actual cost for copies of public records — including such items as paper, a computer disk — but not overhead items such as staff time, equipment rental or office space.
They say: All requests have to go through the [county manager] and be reviewed by the [county attorney.]
You say: Public agencies may not set up gatekeepers of information who must consider or approve the disclosure of public records. The actual custodian of the documents must respond to the request.
They say: We’ll get back to you in a few days.
You say: The Public Records Law requires access be provided to documents “as promptly as possible.”
They say: You cannot have that; it has confidential information in it.
You say: Then the Public Records Law requires you, at your expense, to separate the confidential information out and give me the non-confidential part.
They say: Why do you want it?
You say: “No person requesting to inspect and examine public records, or to obtain copies thereof, shall be required to disclose the purpose or motive for the request.”
They say: I won’t give you that; it’s personnel.
You say: Under the law, I have a right to know for each employee his or her age; date of original employment or appointment to the county service; current position title; current salary; date and amount of the most recent increase or decrease in salary; the office to which the employee is currently assigned and the date of the most recent promotion, demotion, transfer, suspension, separation or other change in position classification.
Even the attorney general has agreed that “Though this definition is quite broad, it does not include within its scope, either expressly or by any reasonable inference, information relating to an institution’s general policies, standards, practices and procedures or to descriptions of an employee’s duties.” I don’t think the information you are trying to protect is actually protected by the statute. Things like contracts are public.
They say: I can’t give you that; it’s personnel.
You say: Other than the hospital employee statute, each of the personnel statutes contains a provision that allows the board or individual heading an agency to release personnel information when release of the information “is essential to maintaining the integrity” of the department/agency.
They say: I can’t give you that because there was a confidential settlement agreement.
You say: The Public Records Law requires that settlements with agencies of N.C. government to be open except for medical malpractice actions against public hospitals. Only a judge can seal a settlement but only after concluding: (1) the presumption of openness is overcome by overriding interests; and (2) that the overriding interests cannot be protected short of sealing.