1 Public Records and Privacy NC State Office of Legal Affairs Workshop April 2002 David Drooz...

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Public Records and Privacy

• NC State Office of Legal Affairs • Workshop

• April 2002

• David Drooz 919-515-1006

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• I. What is public records law?» Slides 3 - 15

• II. What are the privacy exceptions?

» Slides 16 - 58

• III. Records retention» Slides 59 - 65

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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 ....”

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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

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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

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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)

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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?

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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)

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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

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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.”

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• 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.

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• 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.

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• 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

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• 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

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• 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).

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Part II

• Privacy Exceptions

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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

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• 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”

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• 3. Account numbers for electronic payment

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• 4. Settlement documents

– only if sealed by written order of a judicial authority

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• 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

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• 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

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• 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

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• 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

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• 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

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• 10. Personnel files - applies to:– applicants,

– employees,

– former employees

– “wherever located and in whatever form”

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• 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”

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• 10. Personnel files

• become public record 10 years after separation from State employment– except demotion & discipline info

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• 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

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• 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

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• 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

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• 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

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• 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

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• 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

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• 11. Otherwise, disclosure of SSN cannot be compelled by the university

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• 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

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• 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

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• 12. “Education records” =

– all records with information directly related to a student, and

– maintained by the institution or a person acting for it

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• 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

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• 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)

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• 12. Information may be released if it is not “personally identifiable.”

– names, addresses, personal characteristics, unique codes or number IDS are personally identifiable

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• 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

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• 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

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• 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

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• 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

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• 12. Who can see student records without student consent?

– School officials with legitimate reason

– Anyone determining financial aid

– Parents of a dependent student

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– 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

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– Anyone with a need to know in a health or safety emergency

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• 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

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• 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

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– Numerous other exceptions exist

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• 12. Ban on redisclosure

– persons receiving student records must be told not to further disclose them, except as allowed by FERPA

– anyone who violates this condition must be barred from receiving student records for 5 years

– this condition does not apply to directory information, disclosures to parents of financial dependent, school officials, law enforcement subpoenas, etc.

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• 12. Record-keeping:

– School must include in student’s record a list of everyone who has requested or had access, and their reason

• except the student, a person with written consent, a school official, anyone getting directory information, or anyone with a law enforcement subpoena that requires confidentiality

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• 12. “Directory information” -

• a form of student records that is public – unless the student has a privacy

block with the Registrar

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• 12. Directory information at NCSU:• student's name, email address, mailing address,

photograph, enrollment status (e.g., undergraduate or graduate; full-time or part-time), telephone number, date and place of birth, major, student activities, weight and height of athletes, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student.

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Electronic records - special rules

• Electronic records & communications

– Decide if it’s a public record or a private record the same as paper documents: based on content, not medium

– But digital info gets some extra privacy

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• NCSU computer use regulation allows personal electronic info to be examined

• for computer security or operational reasons, or

• where a dean or higher has approved investigation of suspected misconduct

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• Federal law generally prohibits

– interception or use of electronic communications (like “wiretaps”)

– unauthorized access or disturbance to stored electronic communications

– hacking into computer files or programs

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Part III

• Records Retention

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Records Retention

• Trash a file? Delete an email?

• JUST SAY NO!

– It’s a crime unless approved by the Dept. of Cultural Resources: G.S. 132-3; 121-5

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Public Records - email

• “E-mail of ephemeral or rapidly diminishing value may be erased or destroyed when the user has determined that its reference value has ended.”

• If printed on paper, retain transmission and receipt data.

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Records Retention

• Records Retention and Disposition

– Dept of Cultural Resources and UNC agreed on a schedule for disposing of old records.

– http://www.lib.ncsu.edu/archives/archives_programs/Schedules/index.html

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Records Retention

• Records Retentions and Disposition Schedule

– Records not listed may not be destroyed.

– There are broad categories of records. Pick the closest fit.

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Records Retention


– Disposition times can be amended!• Division of Archives has forms - check with

NCSU Legal

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Records Retention


• Records can always be kept longer than the time in the Disposition Schedule.

• This is relevant to audits and litigation

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Part IV

• Hypotheticals

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Hypotheticals

• Dr. Pepper has just been appointed head of his department. He drafts new policy on hiring T.A.s and R.A.s, and circulates electronically for comment.

• The faculty rips apart his draft, so he revises it. He does not preserve the first draft.

• Problem?

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Hypotheticals

• Tobacco companies issue subpoena asking for all documents related to certain tobacco studies, and to all documents on federally funded tobacco research.

• What should NC State do?

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Hypotheticals

• John Q. Bitter was fired from his clerical job, based on poor performance. He now makes frequent public records requests.

• E.g.: all budget files for last 20 years. All emails sent and received by supervisor the past year. All working papers of the office.

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Hypotheticals

• Mrs. Supermom has not had much contact from her son at NC State the last two semesters. She calls the Registrar and asks for a report on her son’s grades. She explains that she is paying the tuition and fees, and she expects a prompt reply.

• What should the Registrar do?

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Hypotheticals

• 9:00 am: U.S. Census Bureau asks Ellen Administrator for list of all students by name, address, race, and gender.

• 10:00 am: Credit Card Inc. asks Ellen for a list of all students by name, phone, address and age.

• 11:00 am: The NCSU Asian Studies club asks Ellen for a list of students from India.

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Hypotheticals

• Joe Student has a car repair business on the side. He asks NCSU Transportation for the name, phone, home address, and email address of all persons with parking permits.

• Any of this protected?

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• Resource:

–Office of Legal Affairs website– http://www.fis.ncsu.edu/ncsulegal/legal.htm

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Public Records Law

• END

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