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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
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 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
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 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
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!
– It’s 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 son’s grades. She explains that she is paying the tuition and fees, and she expects a prompt reply.
• What should the Registrar do?
71
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.
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