Overview of NC Public Records Law for Environmental Health Specialists by salazarcannon

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									Overview of NC Public Records Law for Environmental Health Specialists Aimee Wall UNC School of Government

I.

General rule: Any person has the right to inspect or obtain a copy of public records held by state and local government agencies. G.S. §§ 132-1; 132-6. “The public records and public information compiled by the agencies of North Carolina … are the property of the people. Therefore, it is the policy of this State that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law.” G.S. § 132-1(b). “Every custodian of public records shall permit any record in the custodian’s custody to be inspected and examined at reasonable times and under reasonable supervision by any person, and shall, as promptly as possible, furnish copies thereof upon payment of any fees as may be prescribed by law.” G.S. § 132-6(a).

II.

Applicability of the general rule a. Who is governed by NC public records law? Our public records law applies to every agency of state and local government in North Carolina, including all local health departments. In some instances, the law may also apply to a nonprofit corporation that is closely affiliated with a government agency (such as a hospital owned and closely integrated with a county). The public records law places responsibilities directly on the “custodian” of the records, which is defined as “the public official in charge of an office having public records….” G.S. § 132-2. For local health departments, the custodian will most likely be the local health director but your department may have elected to delegate this responsibility to another individual, such as the environmental health supervisor. b. Who can request copies of or inspect public records? The statute specifically states that “any person” must be permitted to inspect or obtain copies of public records. There are no limitations whatsoever – for example, the person is not required to be a U.S. citizen or North Carolina resident. It also does not matter why the person is requesting the records. “No person requesting to inspect and examine public records, or to obtain copies thereof, shall be required to disclose the purpose or the motive for the request.” G.S. § 132-6(b). c. What documents are considered public records? North Carolina law defines the term “public record” quite broadly so that, subject to some limited exceptions, it encompasses virtually all information in any form held by a government agency. Many different state statutes state that specific categories of records held by government agencies are “confidential,” “strictly confidential,” and/or “not considered public records.” Two of these exceptions (personnel records and medical records) are discussed in more detail below. If a record held by a government agency does not have one of these special statutory exceptions, then the record is most likely a public record.

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“‘Public record’ … shall mean all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic dataprocessing records, artifacts, or other documentary material, regardless of physical form or characteristic, made or received pursuant to law or ordinance in connection with the transaction of public business….” G.S. § 132-1(a). d. What procedures must be followed when providing access to public records? With a few limited exceptions, North Carolina law does not outline specific procedures that must be followed when providing access to public records. In most instances, the law simply provides general guidance – for example, agencies must provide access “at reasonable times” and “under reasonable supervision” and must furnish copies “as promptly as possible.” Counties or local public agencies may have adopted more specific procedures that must be followed regarding such issues as the hours for inspection, whether request must be in writing, and when to charge a fee for copies (and how much to charge). State law outlines specific requirements in a few limited circumstances. For example, an agency must provide copies of records in any form, format or media requested by the person (as long as the agency is capable of providing such a copy). In other words, if a person requests a copy of electronically maintained information on a computer diskette, the agency is not permitted to substitute a printout of the information as long as it is capable of producing the information on a diskette. III. Examples of exceptions to the general rule a. Medical information: There are several statutes that make medical information create an exception to the public records law for medical records. In some instances, an environmental health specialist will incorporate information from medical records into the environmental health record. For example, when a specialist is investigating an outbreak of a foodborne illness, the investigation report will likely include the name of the illness (e.g., salmonellosis) and the names and other personal information about individuals diagnosed with the illness. Prior to releasing records in response to a public records request, environmental health specialists should review the record, make a copy of any pages that include medical information, and redact (or white-out) the medical information from the copied pages (a copy of the redacted copy may be released). There is often confusion as to what constitutes “medical information” in the environmental health context. If in doubt, the specialist, supervisor, or health director should consult with the county attorney. “All records containing privileged patient medical information, information protected under 45 Code of Federal Regulations Parts 160 and 164 [HIPAA], and information collected under the authority of Part 4 of Article 5 of this Chapter [Lead program] that are in the possession of the Department of Health and Human Services, the Department of Environment and Natural Resources, or local health departments shall be confidential and shall not be public records pursuant to G.S. 132-1. Information contained in the records may be disclosed only when disclosure is authorized or required by State or federal law. Notwithstanding G.S. 8-53 or G.S. 130A-143, the information contained in the records may be disclosed for purposes of treatment, payment, or health care operations. For purposes of this section, the terms "treatment," "payment," and "health care operations" have the meanings given those terms in 45 Code of Federal Regulations § 164.501.” G.S. 130A-12

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“All information and records, whether publicly or privately maintained, that identify a person who has AIDS virus infection or who has or may have a disease or condition required to be reported pursuant to the provisions of this Article shall be strictly confidential. This information shall not be released or made public except under the following circumstances….” G.S. 130A-143 b. Lead poisoning program: G.S. 130A-12 was recently amended to provide that “information collected under the authority of Part 4 of Article 5” of Chapter 130A is not a public record. Art. 5, Pt. 4 includes the statutes governing lead poisoning in children. Given the breadth of the language, the exception to the public records law encompasses all information collected under this program, not just a child’s blood lead level. c. Trade secrets: Information is not a public record if it: • Is a “trade secret” as defined in state law; • Belongs to a private party (including a person or corporation); • Is disclosed to the public agency as part of a public contract (including bids and proposals) or as required by law; and • Is designated as “confidential” or “trade secret” at the time of the initial disclosure to the public agency. The term “trade secret” is defined to mean business or technical information that derives commercial value from being kept a secret. In addition, in order for information to be considered a “trade secret,” there must be reasonable efforts in place to protect the secrecy of that information. d. Personnel records: Some information in personnel records of public agencies is considered public record. For county employees in particular, the following information is a matter of public record: • Name; • Age; • Date of original employment or appointment to the county service; • Current position title; • Current salary; • Date and amount of most recent increase or decrease in salary; • Date of the most recent promotion, demotion, transfer, suspension, separation or other change in position classification; and • The office to which the employee is currently assigned. G.S. § 153A-98. All other personnel information is likely to be exempted from the public records law. Please note that the employer has the authority to release other personnel information in a variety of situations consistent with applicable law (other than the public records law).

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