Public Records and Privacy

1. Public Records and Privacy • NC State Office of Legal Affairs • Workshop • April 2002 • David Drooz 919-515-1006

2. Public Records and Privacy • I. What is public records law? • Slides 3 - 15 • II. What are the privacy exceptions? • Slides 16 - 58 • III. Records retention • Slides 59 - 65

3. Public Records Law • “Public record” is any documentary material or artifact • “regardless of physical form or characteristics, • “made or received ... • “in connection with the transaction of public business by any agency of North Carolina ....”

4. Responding to Requests • Must allow inspection • May not demand a reason • Must make copies • Must respond “as promptly as possible” • “Custodian” has duty to respond

5. Questions and Interviews • What if you are asked questions beyond the request for existing records? • 1. Call News Services for media requests • 2. No legal duty to answer questions • 3. No legal duty to create new records

6. Cost of copying • If copies are made, Custodian may charge actual direct costs • not labor or overhead! • Special case: if request requires “extensive” hours or technology • (check with Legal first)

7. Sorting Confidential Info • If confidential information is mixed with non-confidential, the custodian has the duty to separate them in response to a records request. • Does this just mean separating files, or does it also mean word-by-word whiteout?

8. Bad Attitude = FINE$ • Failure to give access to public records may result in award of attorney fees to the requester • State employee must personally pay if for intentional violations (unless acting on advice of counsel)

9. Practical Tips • Call Legal if you have questions about a records request • Call Legal if the request may be related to claims or litigation • Call News Services if it’s a media inquiry

10. Public Records - databases • Databases created after July 1, 1996, must be listed in a public index. • “Database” = "a structured collection of data or documents residing in a database management program or spreadsheet software.”

11. Public Records - databases • A database that exists solely to enhance personal, group, or agency productivity is not subject to mandatory indexing so long as the records do not materially impact the public's interests. • E.g., scheduling systems and personal address books.

12. Public Records - databases • Do not need to index databases that are subsets of other databases. • Do not need to index if database existed before 7/1/96 and subsequent changes are just new data or insignificant to content.

13. Public Records - databases • Database creator must provide to ACS: • a list of data fields • description of format or record layout • info on frequency of updates to the database • a list of fields that contain confidential data • description of the forms in which the database can be copied • schedule of fees for copies

14. Public Records - databases • Administrative Computing Services will help index your databases. See: http://www1.acs.ncsu.edu/db_index/procedur.htm • State rules on indexing are at: • http://www.ah.dcr.state.nc.us/e-records/pubdata/default.htm

15. Public Records - databases • Custodian may require that requests for databases be made in writing. • If you deny a request for access to a database, you must state the reason(s).

16. Part II • Privacy Exceptions

17. Public Records - Exceptions! • 1. Attorney-client privilege • Only covers writings from the gov’t. attorney • where there is a claim or a judicial or administrative proceeding • becomes public after 3 years

18. Public Records - Exceptions! • 2. Trade secrets • Defined in G.S. 66-152(3) • must be the property of a “private person” • disclosed in connection with State business • is marked “confidential” or “trade secret”

19. Public Records - Exceptions! • 3. Account numbers for electronic payment

20. Public Records - Exceptions! • 4. Settlement documents • only if sealed by written order of a judicial authority

21. Public Records - Exceptions! • 5. Law enforcement records of criminal investigations/criminal intelligence • incident reports are public, except if the info may jeopardize an investigation or witness safety • this is a simplification - read the statute

22. Public Records - Exceptions! • 6. Medical records* • physician, psychologist, counselor • where info was acquired by provider as part of professional practice • G.S. 8-53 et seq. • *must report child abuse, crimes of violence

23. Public Records - Exceptions! • 7. ADA/FMLA records • Medical records used for employment purposes must be separated from other personnel files and generally treated as confidential medical records • 29 CFR 825.500(g) and 29 CFR 1630.14

24. Public Records - Exceptions! • 8. State purchasing contracts • Bids not public until official opening • All contract info is public after the award • except trade secrets & other proprietary info • G.S. 143-52 • See also G.S. 143-129 on state construction

25. Public Records - Exceptions! • 9. Research records • generally open to public • possible confidentiality under federal grant regulations • possible confidentiality to protect integrity of research, patent rights, first publication rights

26. Public Records - Exceptions! • 10. Personnel files - applies to: • applicants, • employees, • former employees • “wherever located and in whatever form”

27. Public Records - Exceptions! • 10. Personnel file defined: • “any information gathered by the department…” which relates to “application, selection or nonselection, promotions, demotions, transfers, leave, salary, suspension, performance evaluation forms, disciplinary actions, and termination”

28. Public Records - Exceptions! • 10. Personnel files • become public record 10 years after separation from State employment • except demotion & discipline info

29. Public Records - Exceptions! • 10. Personnel files - public info on employees (not applicants or ex-emp): • name and age • date employment began • current position, title and office where assigned • current salary • date and amount of most recent salary change • date of most recent change in position

30. Public Records - Exceptions! • 10. Personnel files - who can view • employee (or applicant or ex-employee) • except for pre-employment references • supervisor • state legislators • anyone with a court order

31. Public Records - Exceptions! • 10. Personnel files - who can view • any government official, if NCSU head determines it’s essential • not allowed for criminal or tax investigations • anyone whom NCSU head approves if essential to NCSU • must state reasons in a public memo

32. Public Records - Exceptions! • 11. Social Security numbers • Federal law provides people with a limited privacy right in their SSNs • UNC policy reflects this: page XII-E-1 at http://www.ga.unc.edu/publications/admin_manual/chapter_xii.pdf

33. Public Records - Exceptions! • 11. Persons may be required to provide their SSNs • if disclosure is required by federal law • for a current gov’t records system where SSN disclosure was required by any statute or regulation before 1/1/75

34. Public Records - Exceptions! • 11. Persons may be required to provide their SSNs • for administering tax laws • for administering public aid laws • for administering drivers license and motor vehicle registration laws

35. Public Records - Exceptions! • 11. Otherwise, disclosure of SSN cannot be compelled by the university

36. Public Records - Exceptions! • 11. When asking for SSN, must state: • 1) if disclosure is mandatory or voluntary • 2) what law supports the disclosure • 3) what use will be made of the SSN

37. Public Records - Exceptions! • 12. Education (student) records • Must be kept confidential under the Family Educational Rights and Privacy Act (“FERPA”) • Violation may result in loss of federal funding

38. Public Records - Exceptions! • 12. “Education records” = • all records with information directly related to a student, and • maintained by the institution or a person acting for it

39. Public Records - Exceptions! • 12. Education records do not include: • personal notes of school personnel, that are not revealed to anyone else • campus police records created by police for law enforcement purposes

40. Public Records - Exceptions! • 12. Education records do not include: • medical records for students 18 and over, used for treatment and available only to health care providers • employment records, unless the employment is based on the person’s status as a student • info about a person after he/she is no longer a student (alumni records)

41. Public Records - Exceptions! • 12. Information may be released if it is not “personally identifiable.” • names, addresses, personal characteristics, unique codes or number IDS are personally identifiable

42. Public Records - Exceptions! • 12. Student rights • may inspect their own education records, within limits noted in next slide • may obtain copies if it’s not practical for them to inspect the records • may amend or contest accuracy of record

43. Public Records - Exceptions! • 12. Student rights - limitations • medical records: school may choose to provide them to student’s physician rather than the student • students cannot access financial records of their parents

44. Public Records - Exceptions! • 12. Student rights - limitations • records on more than one student • letters of recommendation • if student voluntarily waived the right to see • and they relate to admission, employment applications, or receipt of an honor • student has right to the names of the authors

45. Public Records - Exceptions! • 12. Who can see student records? • Anyone with written, dated consent from the student that identifies • which records may be disclosed • to whom • the purpose of the disclosure

46. Public Records - Exceptions! • 12. Who can see student records without student consent? • School officials with legitimate reason • Anyone determining financial aid • Parents of a dependent student

47. Public Records - Exceptions! • 12. Who can see student records without student consent? • Anyone with a judicial order or subpoena • but student must be notified first • unless it’s a law enforcement subpoena that says not to notify

48. Public Records - Exceptions! • 12. Who can see student records without student consent? • Anyone with a need to know in a health or safety emergency

49. Public Records - Exceptions! • 12. Who can see student records without student consent? • Victims of violent crimes can be told results of disciplinary hearings • Parents can be told results of disciplinary hearings if student under 18 is guilty of alcohol or drug misconduct

50. Public Records - Exceptions! • 12. Who can see student records without student consent? • Anyone can be told of result of disciplinary hearing if student is guilty of a crime of violence