As of September 22, the General Assembly approved House Bill 259, a budget for the current and upcoming fiscal years. The budget bill, which will become law on October 3 without Governor Cooper’s signature, includes three notable changes to public records law.
1. G.S. 132-1.1(a)
The old rule: This portion of Chapter 132 excludes certain attorney-client communications from the default right of public access. Under G.S. 132-1.1(a), attorneys’ written communications to their government clients regarding directly relevant claims, settlements, litigation, or other proceedings are not public record. Note that this section allows governments to withhold covered communications but does not require them to do so; governments may make covered communications publicly available if they so choose. However, the ability to withhold these communications expires three years after the date the governmental body receives the communications. As a result, if a covered communication is three or more years old, the governmental body must produce it upon request.
The new rule: The new version of Section 132-1.1(a) (see PDF page 530) eliminates this three-year waiting period. Now, the only way written communications covered under this provision become public is if the receiving governmental body specifically chooses to make them public. Additionally, the new section eliminates the requirement that the communications be written by an attorney. Instead, new Section 132-1.1(a) applies to any communications written to the public body within the scope of the attorney-client relationship. A strict reading of this statute would therefore indicate that written communications addressed just to an attorney would not fall within this protection, while written communications addressed to the attorney and other members of the public body would fall within this exception. Still, that very literal interpretation seems to cut against the legislature’s apparent intent to broaden the scope of this protection by eliminating the attorney author requirement.
Bottom Line: With the passage of this year’s budget, certain written communications addressed to governmental bodies within the scope of the attorney-client relationship are not subject to public access at any time except at the governmental body’s option.
2. G.S. 132-6
The old rule: This provision generally deals with responding to requests for the inspection or copying of public records. Subsection (d) specifically pertains to records relevant to the expansion of business and industries. Under subsection (d), public agencies may withhold records relating to the proposed expansion or location of a business or industrial project if the inspection, copying, or release of those records would frustrate their purpose. This protection specifically excludes records about general economic development activities and policies. Once there has been an announcement of commitment or a final decision regarding a business’s expansion or location, the withheld records must then be released upon request according to the specific procedures in subsection (d).
The new rule: The budget bill adds subsection (d1) to G.S. 132-6 (see PDF page 345). Subsection (d1) expands subsection (d)’s protections to include records regarding the evaluation, acquisition, or location of a qualifying site for a potential business or industry expansion. These records similarly may be withheld for so long as their inspection, copying, or release would frustrate the purpose for which they were created. Frustrating the purpose specifically includes increasing the costs of acquisition under the new subsection. These protections expire once the site has been acquired (or options secured) or deemed unsuitable. After acquisition or rejection of a site, an agency must disclose the records as soon as practicable within twenty-five days of a request.
Bottom Line: Public records protections for records relevant to relocating businesses or expanding industries now explicitly include site selection records.
3. Changes to G.S. 121-5
The old rule: Section 121-5 establishes the Department of Natural and Cultural Resources as the official archiving agency of North Carolina and prohibits the destruction, sale, loan, or other disposal of public records without the department’s approval. Under this section, public records must be retained according to the department’s retention schedules. Unauthorized destruction or disposal can result in criminal charges and fines under G.S. 132-3.
The new rule: The budget bill adds subsection (d1) (see PDF page 531). Under new subsection (d1), custodians of General Assembly records can independently decide if a record is public. If the custodian decides that a record is not public, the custodian can choose to retain the record or to destroy, sell, loan, or otherwise dispose of the record without any Department of Natural and Cultural Resources involvement. This section applies only to custodians of General Assembly records and does not impact records custodians on the local level.
Bottom Line: General Assembly records custodians have discretion in determining whether a General Assembly record is public. If custodians decide a record is not public, they may choose to retain the record or they can dispose of the record with no legal penalties.
