Overview of NC Public Records Law for Environmental Health by cdf12215


									                              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

           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

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                   “‘Public record’ … shall mean all documents, papers, letters, maps, books,
                   photographs, films, sound recordings, magnetic or other tapes, electronic data-
                   processing 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

           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

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