The Public Records Act - Office of Legal Affairs

Report
The Public Records Act:
It Affects You More Than You Think
Tina Dadio, University Public Records Officer/Paralegal
David E. Broome, Jr., Vice Chancellor and General Counsel
Fall 2014 Legal Symposium
October 16, 2014
Office of Legal Affairs
Public Records
• General Overview
• North Carolina Public Records Act (NCGS § 132-1 et
seq.)
• Exceptions
• Contact Office of Legal Affairs with any questions
What is a Public Record?
• All documents of any type “regardless of physical form or
characteristics…made or received in connection with the
transaction of public business by any agency of North
Carolina”.
– Note: Basically, all records created or received in the course of
university business in whatever format is considered a public
record.
Format and Location
“Whatever format…regardless of location”
• FORMAT
Papers, letters, maps, books, photographs, films, sound
recordings, e-mail, text messages, voice mail messages,
etc.
• PHYSICAL LOCATION
Records on your personal devices (computers, smart
phones, IPad, etc.)
 Note: The status of a record under the law is determined
based on its content, not its location…
WHO and HOW CAN ONE REQUEST A
PUBLIC RECORD?
• ANYONE can request a public record
• Must allow inspection
• May not demand the identity of requestor or the reason for
the request
• No requirement for written request
• Must make copies, but we may charge for
 Actual costs AND
 Extensive services
Responding to Requests
• Must respond “as promptly as possible”
• Do not have to create, but…
 Whatever format we can provide them
 Must redact confidential information
Exceptions…
•
Student Records (such as academic, counseling records, and medical recordsFamily Educational Rights and Privacy Act (FERPA) restricts information)
•
Personnel records (confidential under the State Personnel Privacy Act, but
certain information about each employee is open to public inspection under
NCGS § 126-23)
•
Trade Secrets (NCGS §66-152)
•
Certain personally identifiable information – passwords, date of birth, signatures,
SS#s, DL#s, admissions information
•
Certain criminal investigation and law enforcement records
•
A few other narrow exceptions
Personnel Records that are Public…
(NCGS § 126-23)
•
•
•
•
Name
Age
Date of original hire
Term of employee contract
(written or oral)
•
•
•
•
•
Current position
Title
Current salary
Office of department assigned to
A few other exceptions…
Managing your Inbox: Email as a Public Record
• Email can be a public record, if it is made or received by a state
employee in connection with State business.
• Emails that are considered public records must be retained according to
University Policy 605.3, Retention, Disposition, and Security of
University Records, found here: http://legal.uncc.edu/policies/up-605.3
• Note:
 Personal email is not a public record.
 Purely administrative email that are transitory or have no real value
may be destroyed or erased when you determine that it no longer is
considered necessary or valuable. (joke of the day,
appointment confirmation, junk mail)
Tips for Managing Email
• Use subject lines that are clear and informative (e.g. instead of
“meeting minutes” use “1/1/2014 Department Meeting Minutes”).
• If a document is confidential, consider using “Confidential” in
subject line. However, this label is mostly used for “flagging” item
– whether it’s really confidential is a legal determination.
• Be mindful prior to sending your response to an email. (i.e. use
discretion).
• Manage email based on its content and according to our record
retention policy.
Public Record or Not?
Example #1:
• During the review process for promotion and tenure
of a faculty candidate, are recommendations from the
chair a public record?
Answer: No, only the date and a general description of
the reasons of the promotion (or, alternatively, the date
and type of the separation) is a public record and can be
inspected by anyone upon a public records request.
Public Record or Not?
Scenario #2: Email sample from co-worker to co-worker
•
Email sample from colleague outside of UNCC to co-worker
received on a personal email address
“I sent you the partnership agreement between UNC Charlotte
and the XYZ Company to your work email address. Just between
me and you, I think this agreement is horrible. Before I forget, here
is my Driver's License number for you to add to the insurance
policy: NCDL 1234000.”
Answer: Yes, except license # is considered
personally identifiable information and would
be redacted.
Public Record or Not?
Scenario #3: Email sample from co-worker to co-worker
“Do you think you would have time to bake something for the
Mountain Island Elementary bake sale?
Thanks!”
Answer: This is considered a personal email and not a
public record.
IN OTHER WORDS…
If you don't want to read it on the front page of the
Charlotte Observer or other local newspaper….
DON’T WRITE IT OR EMAIL IT
PROTECTING RESEARCH DATA
FROM DISCLOSURE
What has changed?
• Legislature has now provided an exemption for
certain “research data”.
• Seems to be good protection for our research
enterprise, but questions remain.
• GS §116-43.17
General Statutes §116-43.17
Confidentiality of research data, records, and information
of a proprietary nature- research data, records, or
information of a proprietary nature, produced or collected by
or for state institutions of higher learning in the conduct of
commercial, scientific, or technical research where the data,
records, or information has not been patented, published or
copyrighted are not public records as defined by G.S. 1321”. [emphasis added].
What is Research Data?
Research data is data that is collected, observed,
or created, for purposes of analysis to produce
original research results.
Other Questions
• What about research data sent to UNC Charlotte
by a third party?
• What does the “copyrighted” language imply?
• What does this mean for retention requirements?
• What is the interplay with “trade secret” exception?
Requesting Research Data
Methods of Disclosure:
• State Public Records Act
• Freedom of Information Act (FOIA)
• Subpoenas or Litigation Discovery Requests
• Sponsor or Journal Access Requirements
CONTACT INFORMATION
For further information on Public Records
Contact the Office of Legal Affairs or Tina Dadio at 7-8592
Refer to University Policy 605.8
https://legal.uncc.edu/policies/up-605.8
QUESTIONS…

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