Two New Exceptions to the Public Records Law Protect Citizen Information

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Frayda Bluestein

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Local governments obtain all sorts of information about citizens. Whether it’s for utility billing, payment of taxes, issuing permits, participation in local programs and volunteer activities, or as a result of regulatory or law enforcement activities, our personal information makes its way into government records. Under North Carolina’s public records law, government records are open to public access unless an exception applies. There is no blanket exception for citizen information. Instead, the General Assembly has enacted specific exceptions for particular categories of citizen information. Examples include utility billing information (discussed in a blog post here); email addresses used for subscriber lists (discussed in a blog post here); and social security numbers and other personal identifying information as listed in G.S. 132-1.10.

In 2015, the legislature added two new exceptions to the public records law that will protect citizen information held by government agencies. One law, S.L. 2015-189, protects private information that is obtained by a city under an alarm registration ordinance. Another law, S.L. 2015-190, creates mandatory procedures for the use of automatic license plate reader systems, including limitations on the use and retention of data collected by these systems.

Alarm Registration Information

In S.L. 2015-189, the legislature created a new section G.S. 132-1.7A providing that “registration or sensitive security information” compiled by a city pursuant to an alarm registration ordinance is not a public record. An alarm registration ordinance is a city ordinance that “requires owners of security, burglar, fire, or similar alarm systems to register with the city.” These ordinances are designed to improve safety and reduce false alarms, and they typically require alarm users to register and/or obtain a permit. Examples of these ordinances can be found here and here. Registration information protected under the new law includes “the name, home and business telephone number, and any other personal identifying information provided by an applicant pursuant to an alarm registration ordinance, and any sensitive security information pertaining to an applicant’s alarm system, including residential or office blueprints, alarm system schematics, and similar drawings or diagrams.”

Automatic License Plate Reader System Data

In S.L. 2015-190, the legislature created a new Article 3D of Chapter 20 of the General Statutes, which sets out procedures for the use of automatic license plate reader systems by law enforcement agencies. The statute defines these systems as “one or more mobile or fixed automated high-speed cameras used in combination with computer algorithms to convert images of license plates into computer-readable data.” G.S. 20-183.22(1). The new law requires state and local law enforcement agencies to adopt written policies for the use of these systems, and lists specific provisions these policies must address. G.S. 20-183.23(a). The law also provides that the data obtained through these systems, “shall be obtained, accessed, preserved, or disclosed only for law enforcement or criminal justice purposes.”

The new law prohibits the law enforcement agency from retaining data for more than 90 days after it is captured. Data can be retained beyond 90 days only pursuant to a search warrant or a “preservation request” as defined in the statute. G.S. 20-183.24. The custodian of the data is required to preserve captured data for a minimum of one year upon request of a law enforcement agency. The preservation request must be a sworn statement specifying 1) the location of the camera(s) and the particular license plate for which the data must be preserved; 2) the time frames for which the data must be preserved; and 3) facts showing that there are reasonable grounds to believe that the data is relevant and material to a pending criminal or missing persons investigation, or is needed to prove a violation of a motor carrier regulation. Preservation beyond one year requires a new preservation request. It’s a bit unclear what happens if the custodian is the very law enforcement agency that seeks preservation, but I suppose the agency would simply maintain the sworn preservation request on file in its own records.

While a person’s actual license plate is obviously not private information, the restrictions on the retention of the data respond to concerns about the time and location information that may be captured by these systems. As described by the ACLU, “The information captured by the readers—including the license plate number and the date, time, and location of every scan—is being collected and sometimes pooled into regional sharing systems. As a result, enormous databases of innocent motorists’ location information are growing rapidly. This information is often retained for years, or even indefinitely, with few or no restrictions to protect privacy rights.”

Not a Public Record, or Confidential?

Prior to the enactment of these laws, it seems likely that the alarm registration and license plate data would have been considered to be criminal investigation or intelligence records under G.S. 132-1.4, and thus not public records. The explicit exceptions now remove any doubt about that, but they may well go further. Both of these new laws describe the information as “confidential.” Does that make a difference?

 

Generally, when a record is “not a public record,” the agency is not required to provide public access, but it is not prohibited from doing so. In contrast, the use of the term “confidential” usually signals a legislative intent to restrict the agency from releasing the record or information. The alarm registration law provides that the information is “confidential” and “not open to public inspection, examination, or copying.” It does not include provisions about how or when it can be released, but presumably, the city is free to use and share the information for purposes related to the administration of the registration ordinance and for law enforcement purposes related to the citizens’ safety and security.

The license plate statute allows captured plate data to be disclosed only to a federal, state, or local law enforcement agency for a legitimate law enforcement or public safety purpose pursuant to a written request from the requesting agency. The law allows written requests to be in electronic format and allows the law enforcement agency to withhold the data if necessary to prevent comprising an ongoing investigation. The law also prohibits the sale of captured data.

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