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 its 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/de
  fault.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 govt. 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
  its 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/ch
  apter_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 govt 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 persons 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 its 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 students 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 its 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

51
Public Records - Exceptions!

• 12. Who can see student records without student
  consent?
• Numerous other exceptions exist

52
Public Records - Exceptions!

• 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.

53
Public Records - Exceptions!

• 12. Record-keeping
• School must include in students 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

54
Public Records - Exceptions!

• 12. Directory information -
• a form of student records that is public
• unless the student has a privacy block with the
  Registrar

55
Public Records - Exceptions!

• 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.

56
Electronic records - special rules

• Electronic records communications
• Decide if its a public record or a private
  record the same as paper documents based on
  content, not medium
• But digital info gets some extra privacy

57
Electronic records - special rules

• 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

58
Electronic records - special rules

• 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

59
Part III

• Records Retention

60
Records Retention

• Trash a file? Delete an email?
• JUST SAY NO!
• Its a crime unless approved by the Dept. of
  Cultural Resources G.S. 132-3 121-5

61
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.

62
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

63
Records Retention

• Records Retentions and Disposition Schedule
• Records not listed may not be destroyed.
• There are broad categories of records. Pick the
  closest fit.

64
Records Retention

• Records Retentions and Disposition Schedule
• Disposition times can be amended!
• Division of Archives has forms - check with NCSU
  Legal

65
Records Retention

• Records Retentions and Disposition Schedule
• Records can always be kept longer than the time
  in the Disposition Schedule.
• This is relevant to audits and litigation

66
Part IV

• Hypotheticals

67
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?

68
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?

69
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.
  

70
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
  sons grades. She explains that she is paying
  the tuition and fees, and she expects a prompt
  reply.
• What should the Registrar do?

71
Hypotheticals

• 900 am U.S. Census Bureau asks Ellen
  Administrator for list of all students by name,
  address, race, and gender.
• 1000 am Credit Card Inc. asks Ellen for a list
  of all students by name, phone, address and age.
• 1100 am The NCSU Asian Studies club asks Ellen
  for a list of students from India.

72
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?

73
Public Records and Privacy

• Resource
• Office of Legal Affairs website
• http//www.fis.ncsu.edu/ncsulegal/legal.htm

74
Public Records Law

• END