TRANSPARENCY IN THE TIME OF COVID-19 PUBLIC RECORDS EDITION

Continuing on the theme of government transparency and how you get the information you need to cover the developing COVID-19 crisis, I have outlined here some principles to remember.  Email First@smvt.com for a sample letter you can use to make your requests.  Of course, every situation is different and dependent on your relationship with public agencies and officials, so tailor the letter to your circumstances.

  • Generally speaking, the Public Records Law gives you a right to demand access to records, not to demand answers to questions. Of course, it is fine (and, frankly, only natural) for you to start with a question.  But if you do not get the information you need, identify the document that contains the answer, and ask for that.
  • The definition of a public record is key: any document made or received by a public agency in connection with the transaction of public business.  S. § 132-1(a).  Don’t forget that public agencies receive documents every day that otherwise wouldn’t be public but become public once they are received.
  • The fact that a document has confidential information commingled with non-confidential doesn’t matter. The public agency must remove the confidential information and release the non-confidential, and the agency must pay that cost.  C. Gen. Stat. § 132-6(c).  This is particularly important now, because documents and databases may have both public and confidential information together.
  • If a public agency withholds documents, ask their legal basis for doing so. They must answer you with numbers, not words.  What I mean by that is they must provide you with a statutory or regulatory citation (like G.S. § 130A-143), not with an answer like “privacy of the patient” or “that’s confidential.”  You can only evaluate the agency’s position if you know the precise statute they claim.
  • If you are not asking for patient-specific information, HIPAA and state medical confidentiality statutes don’t apply.
  • HIPAA also doesn’t apply if you are not asking a “covered entity” — health plans, health care clearinghouses, and health care providers.  The hardest call under HIPAA may be if you ask for information from an emergency response team.  A 911 call that results in a dispatch to a fire doesn’t trigger HIPAA, but a call that results in EMS dispatch might.  However, North Carolina has a very specific statute that exempts from disclosure “medical records compiled and maintained” related to EMS programs.  S. § 143-518. The statute doesn’t define “medical records,” but whatever they are, they are confidential.
  • The key to remember is that release of de-identified information or aggregated data does not violate either HIPAA or state law.
  • Push back on anyone who tells you that HIPAA trumps state law. Our Court of Appeals have held that where “[t]he express terms of [federal law] permit the disclosure of the information requested by Plaintiffs,” it must be disclosed.  DTH Media Corp. v. Folt, 259 N.C. App. 61, 71, 816 S.E.2d 518, 525 (2018)  (emphasis supplied).

 

Email First@smvt.com  for a sample letter and make it your own.  Remove the legal-y language, if you prefer, and edit to match your relationship with your local public officials.

BOTTOM LINE:  The two keys are (1) be prepared to identify what documents contain the information you need and (2) demand that you either be given those documents or a valid statutory exemption.

For more discussion of these issues and for North Carolina and CDC data on COVID-19, see the resources below.

From the Reporters Committee for Freedom of the Press:

https://www.rcfp.org/wp-content/uploads/imported/MEDPRIV.pdf

From UNC School of Government:

Should a Local Government Be a HIPAA Hybrid Entity?  https://canons.sog.unc.edu/should-a-local-government-be-a-hipaa-hybrid-entity/

Using & Disclosing Protected Health Information (PHI)

https://www.sog.unc.edu/sites/www.sog.unc.edu/files/Using%20Disclosing%20PHI%20May%202018.pdf

CDC:

https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html#reporting-cases

NCDHHS:

https://www.ncdhhs.gov/divisions/public-health/covid19/covid-19-nc-case-count

 

 

THE COST OF COPIES

School’s out!  I am fresh off teaching media law at the UNC School of Media and Journalism over the 2017-2018 academic year.  I loved it and loved my students!  I am happy, though, to now have time to return to other “teaching,” in workshops and through First for a Reason.

With some frequency, we get questions about how much a public agency can charge for copies of a public record.  The issues is particularly sticky when some public official is going to have to do some real work to give you what you’ve requested.  Maybe the IT department is going to print out all the emails that the Mayor sent and received over a given period, and the City Attorney will review them to remove any attorney-client information.  Or the head of HR for a school district has to review text messages prior to release to be sure they don’t contain any confidential personnel information.

There are three statutory provisions at play in these circumstances.  First, the public records law says that you can only be charged the “actual cost” for the provision of a public record.  G.S. § 132-1(b) “Actual cost” has a specific meaning:  “direct, chargeable costs related to the reproduction of a public record as determined by generally accepted accounting principles and does not include costs that would have been incurred by the public agency if a request to reproduce a public record had not been made.” G.S. § 132-6.2(b). So they can charge you the cost of the paper and the ink and the power to run the copier, but they cannot charge you for the time of the secretary, who would have been working that day anyway, or a pro rata portion of the rent or anything else beyond the – you guessed it – actual cost.

The next portion of statutory language that matters says you can be charged “a special service charge” if your request requires “extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency.”  G.S. § 132-6.2(b).  With some frequency, we hear about public agencies attempting to levy this “special service charge” when a staffer has to spend any perceivable amount of time pulling or copying records for a public records request.  (Nevermind that provision of public records is part of public employees’ duties, not something added onto their duties.)  These agencies are proposing sometimes outrageous fees to fulfill public records requests.  Are those fees proper?

The answer to that question lies in another question:  What is the employee doing in that time?  If it just takes 10 hours to pull down and copy all of the files that you have requested, you may have to pay the surcharge.  However, if the staffer is reviewing the records to scan for and remove confidential information, that’s on their nickel.  You don’t have to pay for that work thanks to the third important statute.  The law says, “If it is necessary to separate confidential from nonconfidential information in order to permit the inspection, examination, or copying of the public records, the public agency shall bear the cost of such separation.” G.S. § 132-6(c).

How do you reconcile the “extensive use” statute and the “separate confidential” statute?  When multiple statutes could apply to a situation, courts employ what is called statutory construction.  The relevant statutory construction principle here is that when one statute is general and another statute is specific, the specific controls.  So in our case, the general law — you can be charged for extensive clerical time – must yield to the specific law – you cannot be charged for the separation of confidential from nonconfidential stuff.

As so often is the case, being well-informed and knowing what questions to ask is at least half the battle.  If you understand your rights, you can insist on them.  (Politely, of course.  This is the South, remember.)

Email us with feedback, questions, or topics that interest you:  First@smvt.com

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CHILD FATALITIES

Reporting on child fatalities is difficult.  It presents a collision between the need for a thorough and orderly investigation against intense public concern and, sometimes, outrage.  Medical records may be implicated.  And the death of a child is always devastating.  If the child was under DSS care or supervision, though, that list of challenges also includes the fact that some people may be defensive.  Why did a child — already known to be at risk – die?

Newspapers have played an important role in informing the public about these cases, which in turn has resulted in changes to the law.  Prompted in large part by the work of Rose Post and the Salisbury Post investigating when children had been injured while under DSS supervision, the public now has a right to certain information when a child under DSS care or custody dies or nearly dies.  The statute to read is G.S. § 7B-2902.  https://tinyurl.com/NC-Child-Fatality-Records   It says that when a child dies or almost dies from suspected abuse, neglect, or maltreatment, there must be a written summary of actions taken or services rendered after learning that the child might need protection. The statute specifically calls for the findings and information summary to include

  1. The dates, outcomes, and results of any actions taken or services rendered.
  2. The results of any review by the State Child Fatality Prevention Team, a local child fatality prevention team, a local community child protection team, the Child Fatality Task Force, or any public agency.
  3. Confirmation of the receipt of all reports, accepted or not accepted by the county department of social services, for investigation of suspected child abuse, neglect, or maltreatment, including confirmation that investigations were conducted, the results of the investigations, a description of the conduct of the most recent investigation and the services rendered, and a statement of basis for the department’s decision.

If a person is criminally charged with the death or near-death – or if the person would have been charged but for the fact that the person died – then the findings and information is a public record.  Within five working days of a request for the summary, the public agency must consult with the DA and release the summary unless there’s a reasonable belief that release (1) isn’t authorized, (2) is likely to cause harm to a minor still in the injured child’s household; (3) is likely to jeopardize the State’s ability to prosecute or the defendant’s right to a fair trial; (4) is likely to undermine a criminal investigation or (5) is not authorized by federal law.  If you request and are denied the summary, you have the right to ask a superior court to consider the case immediately.

Running alongside the administrative evaluation of the situation often is a criminal investigation.  Your rights to those records are found in G.S. § 132-1.4 – the criminal records portion of the Public Records Law.  Under that statute, you are entitled to know (1) the time, date, location and nature of any apparent criminal violation; the name, sex, age, address, employment, and alleged violation of anyone arrested, charged or indicted; (3) the circumstances surrounding an arrest, if there has been one, as well as a description of any items seized in connection with the arrest; (4) the contents of any 911 or other emergency call; (5) the contents of law enforcement communications over public airways; and (6) the name, sex, age, and address of a complaining witness.  The name and address of a complaining witness may be withheld temporarily if there is reason to believe that person would be in danger from release of the information.  Otherwise, if law enforcement wants to withhold any of this information, they must apply to the court for a sealing order, at which point a judge has to balance the rights of the public against the rights of the State and the defendant to a proper trial.

If search or arrest warrants are issued, those become public record once they are returned, and returned means returned, regardless of whether they have been executed.  Therefore, a warrant is public once it makes its way back to the clerk of court.  A search warrant must be executed within 48 hours from the time of issuance.  If it’s not executed, it must be marked “not executed” and returned to the clerk “without unnecessary delay.” G.S. § 15A-248.  If it is executed, it must be returned to the clerk — along with an inventory of items seized — “without unnecessary delay.”  G.S. § 15A-257

The law states clearly that returned warrants “may be withheld only when sealed by court order,” but the statute doesn’t give any guidance with regard to when a court should enter such an order.  G.S. § 132-1.4(k).  Though our Court of Appeals has held that the First Amendment doesn’t create a Constitutional right of access to warrants, the Court found that sealing orders are only appropriate “when sealing is ‘essential to preserve higher values and is narrowly tailored to serve that interest.’”  In Re Investigation Into The Death Of Nancy Cooper.  In the Cooper case, no suspect had been charged or even arrested, and the homicide investigation was ongoing. Arguably the absence of any of these factors could give a basis to challenge a sealing order.

One last note about criminal records:  The criminal records statute makes crystal clear that the use of a public record in connection with a criminal investigation has no bearing on its status as a public record.  G.S. § 132-1.4(f). Therefore, if something is a public record, it doesn’t disappear from view simply because it has become evidence in an investigation.  If the City Manager is charged with embezzling funds from City coffers, the financial records of the City are still public records, even if they have been turned over to the SBI, the DA or anyone else.

ACCESS TO PERSONNEL INFORMATION

FFR received an inquiry about the specifics of the statement in last week’s post that “The law is very narrow with regard to what personnel information is public.  However, almost all personnel statutes permit the public agency to release personnel information when doing so is necessary to maintain public confidence in the integrity of the agency.”

There are many personnel statutes scattered throughout the NC code.  With the exception of the hospital employee statute, though, they mostly say the same thing.  (As an example, see the state personnel statutes: http://tinyurl.com/SMVT-State-Personnel.)  Most of the statutes state that “personnel files” of employees are not public records and then provide that basic information about employees is public.  That list generally includes (1) name; (2) age; (3) date of employment; (4) terms of any employment contract; (5) current position; (6) title; (7) current salary; (8) date and amount of each increase or decrease in salary; (3) date and type of each promotion, demotion of other change in position classification; (10) date and reason for any promotion; (11) date and type of any dismissal, suspension or demotion* and (12) current assignment.

*Note:  If an employee is dismissed for disciplinary reasons, “a copy of the written notice of the final decision of the head of the department setting forth the specific acts or omissions that are the basis of the dismissal.”

These statutes are less than straightforward, however, and there are a few things to know.  First, the public records exemption only applies to information initially gathered by the employing agency related to certain employment activity.  Therefore, even information that lands in a personnel file isn’t necessarily exempt from disclosure.  The News & Observer, Whiteville News Reporter and Tabor-Loris Tribune have all litigated and won that issue.

As with most aspects of the Public Records Law, knowing what you are and are not entitled to get is half the ballgame.  If information truly is confidential under the statute, all hope may not be lost.  Most personnel statutes have what we call the “integrity exception.”  This provision allows the release of personnel information when it is “essential to maintaining the integrity of such department or to maintaining the level or quality of services provided by such department.”  This might come into play, for example, if there were concerns about a teacher exhibiting aggressive behavior to students.  The school system could release information to assure parents and the community that the situation had been dealt with properly.

To invoke the “integrity exception,” there must be a written determination that release is necessary, and that memo goes in the personnel file.  In 2004, Chief Justice I. Beverly Lake of the N.C. Supreme Court used it to release information about the head of the Administrative Office of the Courts when the Chief asked for the AOC head to resign.  Justice Lake wrote:

My disclosure of this information is essential to create a complete public record, and to minimize the risk of distortions or exaggerations resulting from incomplete public information … This information will show that the integrity of the AOC has been preserved and protected by my actions in connection with Mr. Kennedy’s resignation … The behavior that called for Mr. Kennedy’s resignation had not yet injured or impaired the operations of the AOC in any way.

Admittedly this procedure is rarely used, but the point is it has been used.  (To read the memo that the Chief prepared, which can serve as a go-by for any public official considering using this provision, go to http://tinyurl.com/SMVT-Lake-Memo.)

Access to personnel information is limited, but requesters need to have a discerning ear.  Is the information even protected personnel information to start with?  If so, is there an exemption that allows you access, or can you persuade the public agency that there is good reason to release the information anyway?

For a listing of the main personnel privacy statutes, go to http://tinyurl.com/SMVT-Personnel-List.

Email us with feedback, questions, or topics that interest you:  First@smvt.com

OPEN COURTS, OPEN MEETINGS & PUBLIC RECORDS

Access To Court Proceedings And Court Records

  • In addition to the cases that recognize a Constitutional right of access to court files and court proceedings, North Carolina’s Constitution provides that all courts shall be open. C. Const. art. I, § 14; N.C. Const. art. I, § 18.  State law also specifies that court records are public records.  G.S. § 7A-109.
  • North Carolina law also provides a statutory mechanism to object when a party seeks to seal a court record or close a hearing in a civil case. S. § 1-72.1.
  • North Carolina has a law that prohibits any court from issuing an order that bans or otherwise restricts publication of open court proceedings. S. § 7A-276.1.

Open Meetings Law

  • Applies to all elected or appointed bodies that have two or more members and exercise virtually any governmental function, including providing advice or oversight. Also applies to committees of public bodies.
  • Applies anytime there is a meeting of a majority of the public body.
  • Requires three things: (1) notice of the meeting; (2) opportunity for the public to attend unless there is a specifically identified, statutory exemption; and (3) minutes of open and closed sessions.
  • Minutes of closed sessions may only be withheld from public view as long as necessary to preserve the confidential issue served by the closed session.

Public Records Law

  • Applies to all three branches of the government.
  • Unless a document is specifically exempted from disclosure by statute, it must be produced upon request.
  • With limited exception (which has been the subject of recent, unresolved litigation), you can only be charged the actual cost to produce a public record. “Staff time” and other types of overhead cannot be charged.
  • You need not say why you want a document.
  • With limited exception, your use of a public record cannot be restricted.
  • The law is very narrow with regard to what personnel information is public. However, almost all personnel statutes permit the public agency to release personnel information when doing so is necessary to maintain public confidence in the integrity of the agency.
  • The law is very narrow with regard to what criminal information is public. That is spelled out in G.S. § 132-1.4.
  • No magic language is required for public records requests.

For a sample public records request, go to http://tinyurl.com/SMVT-Sample-Letter.

Email us with feedback, questions, or topics that interest you:  First@smvt.com

 

COURT ORDERS RELEASE OF POLICE VIDEO

If a picture is worth a thousand words, a video must be worth a million.  Until a year ago, though, the law with regard to law enforcement videos was muddy.  Some departments took the position that video (particularly of officer-involved shootings) was a personnel record.  Some departments released video — sometimes.  Those of us in or representing the media took the position that law enforcement videos offered the best evidence of “the circumstances surrounding an arrest” – a category of information that is public by law.  Questions remained about access to video when there was no arrest, such as when a suspect was shot and killed.

As most of you know, the law related to law enforcement videos – body cam, dash cam, or otherwise – was clarified effective October 1, 2016.  G.S. § 132-1.4A.  http://tinyurl.com/GS-132-1-4A  All those questions are answered.  Law enforcement recordings are neither public records nor personnel records.  Recordings can be shown – but not given – to individuals captured in the video but not to anyone else.  Anyone who wants a copy of the video – witness, victim and media alike – must petition the court for access.  And pay a filing fee.  And probably pay a lawyer.  The new law took all discretion away from law enforcement and put it in the hands of superior court judges.

Last month, Charlotte-Mecklenburg Police shot Rueben Galindo at his home after he had called 911.  http://tinyurl.com/Galindo-Shooting  Doug Miller of the Charlotte Observer and Robert Dawkins of SAFE Coalition NC petitioned the court to direct the release of law enforcement video.  On October 3, Judge Todd Pomeroy did just that and ordered release of the video by October 6.  http://tinyurl.com/Judge-Orders-Release

Judge Pomeroy wrote, “The Recordings, related to an officer-involved shooting that occurred on September 6, 2017, arise from a matter of significant public interest, and release of the Recordings is necessary to advance a compelling public interest.”  The judge ruled that release of the video “would not create a serious threat to the fair, impartial and orderly administration of justice, in light of the availability of extensive voir dire at trial, as well as other alternatives available to a trial court for ensuring a fair and impartial jury in the event any criminal charges are brought.”  He also found that release would not jeopardize the active internal investigation into the shooting.  For these reasons, he ordered the release of the video with only the caveat that the images of minor children should be obscured. (To read the Court’s order, go to http://smvt.com/wp-content/uploads/2017/10/Galindo-Order.pdf.)

Jon Buchan, who represented Miller and The Observer at the hearing, said “We have now had in Mecklenburg County several successful petitions for release under the ‘new’ statute dealing with release of body camera and dash camera videos and other law enforcement recordings, and Doug Miller at The Charlotte Observer has been aggressive and thoughtful about choosing his battles when seeking them.  It seems that the importance to the community of transparency in these police-involved shootings has become apparent to CMPD and to our courts.”

Dash cam and body cam video is different from other law enforcement records, and it should be public.  Videos from dash cams and body cams are little more than a bare naked, honest recording of what has taken place.  They offer an un-edited and un-editorialized account of an event.  None of us has an expectation of privacy as we travel public streets and sidewalks.   In this age, when more than 90% of adults and 97% of people under 44, have cell phones (Pew Research Center’s Internet & American Life Project), we are subject to being watched, recorded or videotaped during almost all of our time in public.  “Invasion of privacy” arguments don’t justify keeping dash cam and body cam video from public view.

More than 30 years ago, Chief Justice Burger wrote, “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”  Richmond Newspapers Inc. v. Virginia.  Let’s hope that more judges like Judge Pomeroy weigh the merits of releasing law enforcement video and conclude that as a society we are more informed and better citizens when our government is transparent.

Email us with feedback, questions, or topics that interest you:  First@smvt.com

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Stevens, Martin, Vaughn & Tadych, PLLC

Providing legal counsel to traditional and social media and strategic communicators

“Personal Email” as Public Records

Gmail. Yahoo! AOL. Do these sound like official email accounts for the conduct of public business? They can be.

The NC Public Records Law applies to public agencies and public officials/employees. It makes public all documents made or received in connection with the transaction of public business unless there is a specific, statutory provision that exempts them from public disclosure. I highlight “statutory” because public officials must be able to identify by chapter and verse the statute they claim exempts a record from disclosure.  It is not enough to say “It’s confidential,” or “It’s proprietary,” or “It’s sensitive, personal information.”  If there isn’t a law that exempts a document from release, it must be released.

The law makes no reference to how the document is created, transmitted, or stored. A letter to a city councilman about the location of a garbage dump, for example, is equally public whether it is delivered through a .gov email address, AOL, FedEx, or carrier pigeon. Under the law, what matters is the content of the emails. If the email addresses public business and isn’t exempted by some other law, it is a public record. On the other hand, if an email says, “Honey, would you pick up a gallon of milk on your way home?” that probably isn’t a public record even, if it is sent to a .gov email address.

Practical Tip 1:

When you make a request for public records, be clear that you expect to receive all responsive records on the topic that interests you, regardless of what email account was used to send or receive them.  Include a statement like this: “We request all records related to X, whether they reside on governmental or personal computers, and whether they were communicated using governmental or personal email accounts.”

Practical Tip 2:

If you get resistance, you and the public official don’t have to take my word for it that you are entitled to get “personal emails” conducting public business.  Frayda Bluestein, a faculty member with the UNC School of Government, says exactly the same thing I do.  “If an email is made or received in connection with the transaction of public business, it is a public record regardless of whether it is created or stored on a public or a private computer, mobile device, or email system.”  http://tinyurl.com/SOG-Email-As-Public-Record

And if your public official doesn’t trust either me or Frayda, you can quote Judge Howdy Manning.  In a similar situation, ruling on a public records lawsuit against UNC, Judge Manning found that Coach Davis’ personal cell phone bills were public records because they reflected the conduct of public business. Judge Manning wrote, public officials “may not use their personal cell phones to ‘dodge’ or evade the North Caroline Public Records law and may not avoid public scrutiny of their cell phone records by using their personal cell phones to conduct public business.”

The same goes for personal email accounts, personal cell phone texts or personal carrier pigeons.  What matters is the communication, not how it is made.  So don’t overlook your right to receive all records of public business, even those made on personal accounts.

[You can see Judge Manning’s orders in the UNC case here:  http://tinyurl.com/Manning-Orders-UNC]

Email us with feedback, questions, or topics that interest you:  First@smvt.com

 

Public Agencies Putting Records Online

You may be familiar with the provision of the Public Records Law that says you get to ask for public records in whatever format you want, so long as they can be provided that way.

Persons requesting copies of public records may elect to obtain them in any and all media in which the public agency is capable of providing them. No request for copies of public records in a particular medium shall be denied on the grounds that the custodian has made or prefers to make the public records available in another medium. The public agency may assess different fees for different media as prescribed by law.

Starting this month, this provision has a footnote.  If a North Carolina public agency puts “public records in computer databases” online in a format that allows viewing and printing or downloading the record, the agency doesn’t have to provide copies to any individuals who request those same records.  (See statute below.)  An individual can still demand to see the records in person.

The statute does not define “public records in computer databases,” but the provision appears in a section of the law that applies to “electronic data-processing and computer databases as public records.”  That means public agencies may not be able to use it as a wholesale substitute for providing records (unless they first put them in a database), but it remains to be seen how aggressively agencies will interpret this new license to route public records requests to websites.

This development may not be all bad.  Although it will make life harder for individuals who don’t have ready access to the internet or the capability to print out documents, it might serve as an incentive for agencies to post once and be done.  This could mean faster and cheaper access to public records.  And for those who live far away, it eliminates the need to talk public officials into mailing documents.  Some enterprising computer whiz might even create a page that consolidates links to records that get posted across the state.  (Hint. Hint.)

If a public official sends you to the internet instead of giving you a record you request, we’d love to hear about it.  Send us an email at First@smvt.com.

G.S. § 132-6.1(a1) (effective July 1, 2017)

Notwithstanding G.S. 132-6.2(a), a public agency may satisfy the requirement under G.S. 132-6 to provide access to public records in computer databases by making public records in computer databases individually available online in a format that allows a person to view the public record and print or save the public record to obtain a copy. A public agency that provides access to public records under this subsection is not required to provide access to the public records in the computer database in any other way; provided, however, that a public agency that provides access to public records in computer databases shall also allow inspection of any of such public records that the public agency also maintains in a nondigital medium.

Email us with feedback, questions, or topics you’d like to read about:  First@smvt.com