How should a North Carolina local government respond to the following public records requests?
First, a request for a list of all building permits issued to governing board members or their relatives.
Second, a request (submitted after October 1, 2010 under the revised personnel privacy law) for a list of the date and type of each dismissal, suspension, or demotion for disciplinary reasons within the past ten years for any law enforcement officer employed by the agency.
Assume that in each case these lists don’t already exist, but with some effort, they could be created from records that do exist. Does state law require the public agency to create these lists? In my view, the law does not require a public agency to create the first list (although the agency may prefer to do so rather than provide all of the records in which this information exists), but the law does require the agency to provide the second list.
Why the different results? Although the general provisions of the public records law make clear that an agency is not required to create records in response to a public records request, the personnel privacy laws mandate that specific information is public. This means that if such personnel information is requested, it is the information itself, not the record on which is exists, to which the right of access applies. Section 132-6.2 of the public records law deals with a public agency’s general obligation to provide copies of public records. Subsection (e) of that statute says:
“Nothing in this section shall be construed to require a public agency to respond to a request for a copy of a public record by creating or compiling a record that does not exist. If a public agency, as a service to the requester, voluntarily elects to create or compile a record, it may negotiate a reasonable charge for the service with the requester.”
This provision is the basis for the answer to the first request. The records that contain the requested information are subject to public access under the public records law. An agency could allow a person to review those records and request copies of any that contain the information they seek, or the agency might offer to create the requested list and negotiate with the requester for a reasonable fee. (Note that that there is no authority to require the requester to pay for the unit’s time in identifying the records or creating the list.) There is no law, however, that requires the unit of government to extract information from the building permit records and create the list in response to the request.
The response to the second request is different because the status of that information is governed by the specific personnel privacy statutes that govern public employee records. Those statutes are separate from the Public Records Act, and although they make most personnel information confidential, they each contain a list of information about employees that is “a matter of public record.” As noted in my earlier post, this list has been changed for most North Carolina public agencies, effective October 1, 2010. (That post also lists the various agencies affected by the new law, and discusses some slight differences in the wording of their personnel privacy statutes, which may affect the obligations of some of agencies with respect to this type of request.) Except in one case, the things that are public under the personnel privacy statutes are of types of information – not specific records. The one exception is the new requirement to provide “a copy of the written notice of the final decision of the (agency) setting forth the specific acts or omissions that are the basis of the dismissal.” That provision provides access to a specific type of record. As I noted in my earlier post, it’s my view that this probably requires access to the record if it exists, but not the creation of a record to comply with the request. For the other types of information that are made public under the personnel privacy statutes, it appears that if a list of information is requested, agencies are required to provide the list, rather than access to the records that contain the information.