Hi. I'm Ben Brown with the North Carolina League of Municipalities, which brings you this monthly podcast. Is where we share ideas for any beneficial extracts and just see how cities and towns and their governments are handling what's in front of them to have that exploratory conversation. Before I came to the League for a period of about ten years, I was a newspaper reporter. And that had me covering local government, before the job brought me to Raleigh where I was covering the state legislature, the house, and the senate. I was all about access to records. That didn't mean I knew all the ins and outs of public records law. Well, at the League of Municipalities, this is something that we do know inside and out, or at least I can afford that credit to our staff attorneys who, among their usual duties, help our member cities and towns understand North Carolina public records law, from the basics to the quirks and potentially unusual situations or things that seem to change with time and technology. Just for example, back in the nineteen eighties, you know, people weren't thinking about public records in terms of, say, messages the city's received on social media. That's actually something I asked about in this interview that we're gonna play here on this episode. I I spoke with league staff attorney Baxter Wells. He's an expert. He's given many presentations on public records law. And we've also got a master class of sorts, a separate video, but it's kinda like a master class of sorts, where Baxter walks us through public records law really thoroughly. On this episode, we cover some of the basics, but also some of the interesting and potentially unusual or novel situations between records, local government, time, technology, and what state law says.

your title, what that entails with, your work here at the League? Sure. Yeah. So thank you for having me. I'm Baxter Wells. I'm assistant general counsel with the North Carolina League of Municipalities. And so my job here at the league is kind of an in house attorney, for the league. And so reviewing contracts, advising on kinda internal governance issues, risk, all of that kind of, work, legal work that you would associate with the general counsel, we handle that for the league. Because, of the league's mission, the outreach mission, the amount of education we do with members, the amount of engagement we do with members, I also, in that role, get to do a lot of, presentations, a lot of education across the state, podcasts, webinars, things of that nature on a whole wide variety of topics, impacting municipal law. So that's that's kind of my role here at the league. I'm jazzed today to be talking about public records. I know it doesn't doesn't get many people up, up in the morning, but, for me, this is, this is this is something near and dear to my heart. I got a little bit of Leslie note in me.

come mostly specific to North Carolina. And and luckily, it's one of those statutes that does give us a, a definition. And so looking at the the statute, we're looking at there there's a bunch of words that the statute used to describe it, but I'm gonna distill it down to documentary material. If you're looking at a piece of paper or you're looking at anything, if you're looking at a CD, if you're looking at, you know, any a a recording, anything of that nature and you're getting information from it, if it's documenting something, it's likely a record under the Public Records Act. And so you're you're right to kinda to break it down, into its public aspect and then its record aspect. And so that's the definition of record in the statute. It's really just any kind of documentary material is likely going to be considered a record under under the statute. And then moving towards kind of the public side of that, the the statute's definition continues on. It says it's any documentary material regardless of its physical characteristics. So it doesn't matter what it looks like. It doesn't matter how it's stored, but it's regardless of its physical characteristics that is made or received. Okay. So we're we're this records that we make and its records that our towns and and cities receive from others. K. Pursuant to law or ordinance, we're gonna set that aside. That's just a fancy way of saying that it's it's being done by the city as part of its official official business, in the transaction of public business. And so that's where that word public comes in is, we're not talking about any documentary material anywhere. We're talking about documentary material that is made in the transaction of public business, made or received by the town in the transaction of public business. Okay. And I wanna get kind of give an example there that kinda kinda summarizes this. You know, it's a best practice these days wherever you're employed, to to to have, you know, IT security training or to have sexual harassment training. That's just a universal best practice in the employment world these days is you need to be able to train your employees on that. Mhmm. When someone receives training on that in their in their capacity as an employee, at the city, that material is not necessarily made or received, in the transaction of public business. That is personal to the employee. So so we're not we're not looking at all documentary material. We're not necessarily looking at, the birthday card that you may draft on your work computer to your spouse. That's not that's not a public record. But but but the statute does give us a solid, really broad, definition of what the public record is.

Is there a way I know what what is or what isn't public? Are there rules of thumb for that? Yeah. So so the, that's a good that's a good question too. There there's the statutory definition, and it's really, really broad. But, when you dive into the statute, it kinda sets up three buckets for for an observer to look at. We wanna start with the biggest bucket, and that is kind of the the the overarching rule. Pretty much everything is a public record. Can I start by assuming Let's just assume that everything is a public record? Mhmm. Unless it's not. So all of the documentary material your town and or city is is producing, we're gonna we're gonna start with kind of the largest bucket, which is is going to be a public record likely. Unless it's not. Unless somewhere in the statute, it says that it's not. Our second of the three buckets that we're looking at is our non public records. And so these are not these are records that the town or city has, discretion in whether to, release or not. They they haven't been made confidential by a, by a law, but the general assembly has said these are not public records Mhmm. Subject to release into the Public Records Act. They certainly still can be released if if you want them to, but but towns and cities have that, discretion, and that's a really small sub bucket. And then we have an even smaller bucket of records, and those are confidential records. Those are records that cities and towns are prohibited from releasing, and it makes sense. These are like personnel records. Mhmm. Things that are very personal to the to the employee. It would it would damage their reputation if it got out. The employee themselves are likely able to get copies of their personnel record, but the city or town is prohibited from releasing personnel files except for limited information like people's names, the date of their promotion, all that kind of stuff that you might be able to find in the newspaper. Mhmm. But in general, the personnel file is is a confidential record. And so the there's three buckets, the public records, that's the general rule, the non public records, and then your confidential records. And so the statute sets out, which is which and and kinda how you determine whether something is confidential or non public. Mhmm. And I mentioned the Public Records Act, but there's also statutes spread out throughout our statutory scheme that make things either non public or confidential. An example of that is like, school records, for for k through 12 school records. Those are made confidential or parts of that are made confidential by our public education statutes. You wouldn't know that by looking at the Public Records Act. You would have to have some kind of interaction with the public school system and and realize maybe your town is doing a after school program. And then they're receiving, school records, you know, people's student records as part of that after school program. Those might be confidential, but you're not gonna find that in the Public Records Act. You gotta look elsewhere for it. Okay. So public, non public. Mhmm. When we're talking about confidential,

All all records become public records after a 100 years, but of course that's not really Gotcha. Not really referent, relevant here. But, so, another example of confidential records that'll kinda display or or explain how it can be, how it can change, how the nature of it can change, our body body worn camera. I'll just touch tonight because sorry. Body worn camera footage. Mhmm. And so this is confidential in that it can only be released pursuant to a court order through the procedure set out in in statute. Mhmm. But once you've got that court order allowing you to release it, it's no longer confidential. So there's a path. So there is a path to making it not confidential. To my to my knowledge, there is, nothing necessarily that is, confidential that by the mere passage of time becomes not confidential. But there's certainly things that cities can do to make things not not confidential.

Do I have the right to that or So we're talking about the DMs? You know Yeah. The DMs. People people direct messaging Yeah. City. Yeah. So that that's a great that's a great example. I would say definitely, that is in the public record record sphere. The communication between citizens and the city on a, base or or or addressing a city event. Even though it's in a direct message between an Instagram user and an Instagram user, the fact that the city is on one side of that or a city employee is on the on one side of that equation brings it into the public realm. Let's go through our elements, though. Elements, though. So we've got documentary material. Yes. We've got a message thread. It doesn't matter that it's digital. It doesn't matter that it's in a kind of a direct message chain. We've got documentary material Mhmm. Regardless of its physical characteristics or form. It's it's it's, made pursuant to law or ordinance. There's, you know, ordinances. It's legal for cities to have a Christmas parade as part of their part of their normal activities. And then the record was made in the transaction of public business. It's It's it's people reaching out and asking their city about details or criticizing the city on its details or or or whatever the the citizen is saying in those direct messages to the city. That that's definitely, in the transaction of public business. And so going back to our three buckets, I'm gonna say yes, that's a public record. My next question would be, is there something that makes it non public or is there something that makes it confidential? Okay. And so let's let's go back to the example of, like, security plans for a building. You may have, in those Instagram direct messages, I'm not gonna cast versions, but there may be some towns out there that do a hefty amount of event planning Mhmm. Through Instagram direct messaging. I'm I'm not I haven't seen it happen, but let's just let's just hypothetically say it's going on. Mhmm. And the town manager or the the police chief forwards the the security camera plans from, the the grounds around town hall where the that is not that is a confidential that is something that that, the town can keep confidential. They do not need to release the security plans even though it is in a Instagram direct message thread with a bunch of other public information. They would be able to redact that portion, but they do need to produce the rest of the back and forth.

Maybe where are some other examples of that kind of thing? Yeah. This law is from the nineteen thirties. Okay. Okay. It is when when when the Public Records Act came about in its current form and so it's evolved. It's continued to evolve, but let's get back to the to Instagram, you know, message that certainly was not contemplated when the when the law came out. And so, the the definition is is really necessarily expansive in terms of it capturing all that documentary, documentary material. But there there have been, there have been things that have come up, since, body camera footage is a huge one that that is probably the most recent, substantive addition to the, the Public Records Act, which is, law enforcement recordings. And that includes your your dash cam footage, your body camera footage, the security footage from the, from the police station, this, that, and the other. And and, so that that's a new kind of a new a new thing that has come out. Also, what people use public records for Uh-huh. Has has not only, changed in its nature but also in its intensity. One of the key elements of the Public Records Act is it doesn't matter why someone is is, requesting a public record. You can't deny a public records request because of why someone is asking for it. Right. They don't have to give you a reason. And if they give you a reason, you can't deny it based on that. So we we have a lot of towns that are on the verge of potentially getting a lawsuit. They have attorneys from the other side making public records requests and gathering evidence that way. Perfectly legitimate. You have estranged couples going through divorce proceedings where one of the couples may have either been interacting with the town or was an was an employee of the town, and now the the estranged spouse on the other side is making public records request for really anything this person touched. Mhmm. And even though we may we may frown on those, you know, the use of the Public Records Act in those instances, it's perfectly perfectly legitimate. And you your background and and and, in in being a reporter and and, the media, the the the critical nature of local media, the critical and also evaporating nature of of of local media in in North Carolina is one of the greatest tragedies, you know, of our of our time. And, but but there's no greater, I think, application of, public records than, the media taking what our local governments are doing and and shining a light on it. And so that that's been the traditional use. That's been a traditional use, but you see really it being used in creative ways to, kind of parse out that information. Don't get me started on AI and and

And, you know, those are processed according to a written policy, and there's steps that you go through. They have software that assist them with it. You go out to a smaller, you know, one hundred, two hundred person town. They're obviously not going to have those resources. And so it's really whoever gets the request, that processes it and and that that gets it out there. And ultimately, what we say is it's everyone's responsibility. It's the board's responsibility to make sure that the town is complying with the law. Uh-huh. And whether that, you know, whether that is them directing the clerk to respond to the public records request or them doing it themselves, it just needs to be responded to. And so but there is no higher authority that makes a determination based on whether makes the determination whether something is a public record. We have the statute. Mhmm. We have our cities and towns laboring in good faith to comply with the statute. And ultimately, if someone disagrees with whether with the city's determination about whether something is a public record, then they have to go to the court system. They have to sue the city, to release those record. And then ultimately, a judge will decide whether it was truly a public record. And that's why we always we always like people to start with the big bucket. It is probably a public record Mhmm. Unless it's not. Because in that instance, if someone were to disagree with the city, it it would be the city's responsibility to prove that it wasn't. It it Okay. The burden is on the city Gotcha. To, to prove that a record is not is not public if they get to court, if they go that far.

that's the Freedom of Information Act. Not to be confused with FOIL, which people say Right. Frequently. FOIA. Yeah. Yeah. I'm actually airplane technology or something. But, but no. So, so FOIA, the Freedom of Information Act is a federal statute. It applies, and operates in much the same way as our Public Records Act operates with the federal government. However, it it is different in a lot of key ways about how agencies respond. They have timelines, you know, this, that, and the other in in in FOIA. But that that applies to the federal government, and it only applies to the state government when the when the state state government is is is stepping into the shoes of the federal government or doing some kind of of federal, government work. And so when we're talking about, local governments, they don't really need to concern themselves with FOIA, with the Freedom of Information Act. We have our own state specific, Public Records Act and so that that's what's going to apply for our to our cities and towns. But it's it's a good thing you brought up FOIA because we've got our Public Records Act and and and really elected and and appointed officials wanna know how to handle public records requests. Like, that's their interaction with the public, records act, bringing it out of the academic and putting it in the practical. If you receive a request that says it's a FOIA request, you may know that that the the requester is using not the right language there. Mhmm. But you should still treat it as a as a public records request. Right. So so the general idea, you know, kinda carries that. Transparency. Want a public record. Transparency is is is what carries the day here. And and so, your default should be transparency. And, and just know that, you know, when when the law and I printed off the whole statute here. It's about 23 pages. When the law gets to the public records request, area and starts describing what those looks like what those look like, it's open season. Uh-huh. The the statute specifically says it doesn't need to be in any particular form. It just needs to be, you know, legible and and and and and received by the city, but someone can come by town hall and make the request in person. Someone someone can submit a request through a portal that you set up online. They can send you a letter. They can send you an email, a text message. The request can come kind of in any kind of form or fashion, and and it's important that you not try to necessarily use that defensively. If you get a request looking for documentation, you've got a public records request on your hands and you need to respond you gotta respond to it appropriately.

two sides of the same coin. You've got, you've the whole nature of the Public Records Act is that it permits transparency, that that good, bad, and ugly. Mhmm. And so you've got, you've got public servants, endeavoring to protect their city or town from, an embarrassing thing that has happened. And so they're they're trying to come up with some way to not release, what is clearly a public record. Mhmm. And that's that's just human nature. Right? You're you're you're looking out for the town or city. You know this is gonna cause a bunch of heartburn. It's a public record. The public is supposed to know about it. Mhmm. On on the flip side of that, the public public records law and and, you know, I mentioned that you gotta look outside of the Public Records Act to get a full picture of what's confidential or what's, what's not. You know, the whole personnel files thing I was talking about, that's not in the public records act. That's in chapter one sixty a. It says personnel files are are, are, confidential. And so on the flip side of that coin is you have public servants really wanting to fulfill the spirit of the Public Records Act and and they're reading the Public Records Act and they don't see anything about it being confidential. And then they may step on the landmine and and release a record that, is is, is confidential by mistake. So the lesson there is you need to get your town attorney involved, your town or city attorney. Experienced clerks are gonna be able to do this, you know, in their sleep. Town it is the town or city attorney's duty and job to advise you on whether something is a public record or not or whether it needs to be released or not. And so that that is where they come in. That that is that is why you're, that's why your town pays them the moderate bucks to to, to answer those tough questions. That's a lot of stakes. Yeah. Yeah. There is. Yeah. Yeah. Yeah. The stakes. I mean, you're you're it doesn't happen often. I don't I don't wanna I don't wanna, you know, put it out there that it happens often, but towns and cities do get sued, for not releasing, records. There's a reputational harm. It's it's that old adage. Well, if you don't have anything to hide, you know, or Right. This, that, and the other. And and it causes, it can cause reputational issues and and a breakdown of trust. And, ultimately, if if you're denied a public record and a court ends up, determining that, that it was a public record, then you're on the hook for their attorney's fees. You gotta you gotta pay potentially a 6 figure bill Wow. For this, for this, person coming after the public records. And that's personal. That's personal to whatever official is violating this violating the statute. So it's not necessarily the city paying that bill. Okay. If if an official That's official. No. Right. If an official, refuses to produce a record that is ends up being a court determining that it is a public record, they personally can be liable for, attorney's fees. And so that's it we're not the general assembly is not joking around here. This is not a this is not a, it's it it gets me excited because it it's it's one of the pillars of open government. It's it's how we know our government is doing what we elected them to do. But on the on my when I put on my lawyer cap, it's it's a it's a minefield out there. And and any anytime your spidey senses go up about all this is this is something that's on the fringe or I'm not completely certain about this public records wise, you need to get your attorney on the phone.

Yeah. Yeah. So there there's a couple, big ones out there. I'm I'm gonna I'm gonna, I'm gonna promote the league first because I'm blown away every day by how much we do, with our with our members. But we we've got a webinar, developed, specific to public records, and that's definitely gonna be a deeper dive into the the nuance there, that's available on demand. Mhmm. We also co produce with the UNC School of Government, the essentials of municipal government class every, late late winter. So January, February well, dead of winter, I should say. January, February, we go across the state with the school of government and hold a two day, two day class on that. If you haven't checked it out already or you never been to essentials of municipal government registration, it's still open now. Go find you a seat. It's it's really worth it, and you get to meet you get to meet elected, leaders, of various experiences Mhmm. Throughout the state and it's just a great experience. But, other than that, the school of government themselves have, staff that are dedicated to researching public records law. So if you just Google UNC School of Government public records, you're going to get 10 plus publications Mhmm. By professors whose sole job is researching and writing and educating on on municipal law topics like that. So that that, you know, North Carolina is unique. Mhmm. The the power couple that is the league and the UNC school of government does not exist elsewhere. And and local governments are you need to use you should use those resources. And so we've got the lead got the UNC School of Government and then we have a state agency. The State Archives is how to house in the Department of Natural and Cultural Resources. But State Archives they've got like eight professionals that work around the clock advising government agencies about how to maintain their records. Mhmm. And these people will come. They will they will will spend time one on one answering your questions about how long records should be retained because that's the thing we didn't have time to get into today. But how do you retain your records? Where do you keep them? How long do you have to keep them? That's Pieces of paper that are disintegrating. Exactly. Exactly. I mentioned a hundred years, back at the front that there there are provisions in the law that allow you to destroy public records so that you don't have just vaults and vaults and vaults of unnecessary paperwork, but that's that's set by state archives. And these these folks are in the weeds on a regular basis, and they're just a phone call away. So, again, Google North Carolina State Archives, local government. They've got a staff dedicated to helping our cities and towns

Most almost all of the 540 plus cities and towns in Wisconsin are members of the league. You can reach out, through our legal consulting, hotline online. You can email me bwells@nclm.org, and we we can we can show you the map. We can't necessarily tell you which way to go. That that needs to come from your town attorney. We can work with your town attorney to to figure out the harder questions. But if you have just general questions about, what statute deals with this and and where where do I go to find this, please reach out. We'll we'll be happy to help. It's great to know. Well, Baxter, thank you so much for joining us. Yeah. Thank you, Ben, for having me.

Thanks for being here with us. Thanks to Baxter Wells for his expertise here. There's a lot more where that came from. Made mention in the intro to a really thorough video that Baxter did about public records and how the law handles them in North Carolina. Obviously, of importance to city and town halls across the state. That video is available through our AML program. That's Advancing Municipal Leaders AML. Shout out to Penny Spicer Sidbury, by the way. She's the longtime clerk for the city of Wilmington. And I knew back in the day when I was a reporter, I threw records request her all the time. So thanks, Penny, for your patience and professionalism. Go back and listen to our episode about municipal clerks for more of that. If you have any thoughts, questions, or other feedback for us about public records law here or anything that might relate, please let me know. Send me an email. I read everything that comes in. You can reach me through n clm dot org. That's nclm.org. Website of the NC League of Municipalities. Check out the people directory, and you'll be able to reach me. My name again is Ben Brown. I'm with NCLM, which brings you this monthly podcast about cities and towns, and we will see you on the next one.