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Retention, Production, and

         April 21, 2009
  Don Wright, General Counsel
   NC State Board of Elections
     What are “public records”?

 Remember all records - including documents, tape
recordings, photographs, videotapes, or any other
record, regardless of whether they are draft or final
in form - that are made or received in connection
with the transaction of public business are defined as
public records. They can be in any physical form
including electronic. The person seeking a record
may request that it be provided in any format that is
available through the public agency, and the agency
must have indexes of data bases contained on their
computers. (GS 132-1).
 What are the “election” exceptions to being a
“public record” and being subject to disclosure?

• Political Committee Financial Accounts
  Numbers                GS 163-278.7 (7)
• Voted or Cast Ballots GS 163-165.1(e)
• Social Security Numbers GS 163-82.10
• Drivers License Numbers GS 163-82.10
• Date of Birth GS 163-82.10 and 163-82.10B
  (Giving out age is OK)
• Confidentiality Program GS 163-82.10
 What are the “general” exceptions to being a
“public record” and being subject to disclosure?
 General Exceptions found in GS 132-1 through 132-
• Attorney/Client Communications
• Trade Secrets
• Investigations (Including Election Investigations)
• Personnel Records
• 911 Databases
• GIS Systems
• Security Information
Federal Election Records Retention
           42 USC 1974
 Sec. 1974. Retention and preservation of records and papers by officers of
 elections; deposit with custodian; penalty for violation Every officer of election
 shall retain and preserve, for a period of twenty-two months from the date of any
 general, special, or primary election of which candidates for the office of
 President, Vice President, presidential elector, Member of the Senate, Member of
 the House of Representatives, or Resident Commissioner from the Commonwealth
 of Puerto Rico are voted for, all records and papers which come into his possession
 relating to any application, registration, payment of poll tax, or other act requisite
 to voting in such election, except that, when required by law, such records and
 papers may be delivered to another officer of election and except that, if a State or
 the Commonwealth of Puerto Rico designates a custodian to retain and preserve
 these records and papers at a specified place, then such records and papers may
 be deposited with such custodian, and the duty to retain and preserve any record
 or paper so deposited shall devolve upon such custodian. Any officer of election or
 custodian who willfully fails to comply with this section shall be fined not more
 than $1,000 or imprisoned not more than one year, or both. (Pub. L. 86-449, title
 III, Sec. 301, May 6, 1960, 74 Stat. 88.)
 How is a public information request made?

• There are no formal required forms for such
• They can be made by any “person”, not just a
  N.C. citizen. (GS 132-1)
• Public agencies may not set up gatekeepers of
  information who must consider or approve
  the disclosure of public records.
• As found in G.S. § 132-6, the records must be
  made available "as promptly as possible".
Often we have citizens send us questions
under a public records request, i.e.
“Why did the board chose X location as a one-
stop site?”
This is something you may want to answer,
but you do so not as records request. Some
citizens may want to engage in “debate” over
the merits of your decision under the guise of
a records request.
What can you charge for copies of public

It is limited to actual costs. That cost may
include such items as paper, a computer disk,
or the like. It may not include overhead items,
such as pro rated charges for staff time,
equipment rental or office space. However if
you have to hired additional help or work staff
extra hours you can charge for those costs. Let
the requestor know beforehand of these extra
      Inspection and Examination
               (GS 132-6)
Inspection and examination of records must
be offered at reasonable times and under
reasonable supervision. You should not leave
the person alone with the records.
Person requesting does not have to disclose
their purpose in wanting the records.
If confidential information is commingled in
the records, the agency must remove it prior
to producing (Redacting).
       Values of Public Records
• Administrative Value
  Records with administrative value are the
  ones that help your office do its work and
  thereby accomplish the functions for which
  your office or agency was created.
• Fiscal Value
  Fiscal records fulfill and document fiscal
  authorizations, obligations, and transactions
  and are often subject to audits.
        Values of Public Records
• Legal Value
  Records with legal value contain evidence of legally
  enforceable rights or obligations of government or of
  its citizens and, like fiscal records, can often be
  subject to official actions such as subpoenas, audits,
  investigations or lawsuits.
• Historical Value
  Historical or archival records document significant
  events, actions, decisions, conditions, relationships,
  and similar developments.
                           Vital Records
• Another category of records within your office is vital (or essential)
  records. Vital records are those records that are necessary to re-start an
  organization's operations in the event of a natural or human-made

    Vital records also
•   Support critical, vital, necessary and desired services;
•   Preserve the legal, financial, and/or functional status of the agency;
•   Protect and fulfill obligations to citizens of the state; and
•   Identify unique records.

   Examples of your vital records:
Board Minutes                  Original Paper Voter Registration Forms
Ballots of Prior Elections     Original Paper Election Documents
State Board/HAVA Grants        Personnel Records
            Disaster Preparedness
  Develop in cooperation with SBE and your county
  government…..Keep it updated.

• Identify the risks:
     Geographic and climate hazards , man-made disasters ,
      adjacent environmental risks and building and site risks.
• Identify recovery vendors: If possible, make prior contact.
• Develop communication strategy: Compile emergency
  contact information for:
   All staff members, local emergency personnel,
   state agency contacts and facility management staff .
Develop a written preparedness plan that:
  – identifies a staff member to head up the disaster
    preparedness efforts both as to records and
  – includes a plan to train staff
  – distributed to all staff, NC SBE and local
    emergency personnel
  – is stored off-site
  – identifies vital records and prioritizes which
    records to save first; this includes being familiar
    with your records schedule and the records
    created in your office
  – includes provisions for compiling disaster recovery
   Records Management includes:
• Developing a records retention and disposition
• Managing a filing and information retrieval system,
  in any format (electronic or paper);
• Ensuring, according to archival and records
  management practices, adequate protection of
  records in any format, that are vital, archival, or
• Storing active and inactive records in an economical
  and space-effective manner;
• Maintaining public records in a format that facilitates
  access by the public
    Authenticity and Legal Admissibility
    Records must be:
•   authentic - Do the records come from whom they say they
•   reliable – Are the records free from unauthorized alteration or
•   complete- Are all the records accounted for?
•   timely - Was the information created/entered in a timely
•   integrity- The system in which the records are stored or
    managed is operating properly.
•   controlled - Access is available to only those that need it, to
    protect records from corruption.
•   GS 8-45.1 allows copies, in lieu of originals, to be admissible if
    they were made correctly
            Scanning Public Records
• Many local government agencies throughout North Carolina have started
  scanning projects or are considering reducing paper records. A few things
  to keep in mind if you are planning a scanning project are:
• You can scan any record you like;
• Scanning is not required;
• Balance the cost and the benefit: sometimes offsite storage of paper
  documents or microfilm is the way to go for records needing long-term
• There is more to a scanning project than just scanning the
  documents. Consider:
   – Document preparation, such as removing paper clips, flattening
   – Quality control …do you trust the employees to do the job right?
   – Indexing …If you don’t have a way to retrieve the documents then
      what have you done?
   – Maintenance (i.e. storage, conversion). Electronic based storage needs
      active maintenance.
  Public Records Require a Retention Schedule
Two general statutes chapters address the government's legal
  obligation to take care of its records. This applies to both
  local and state governments
• The first is the Archives and History Act, G.S. 121, which
  assigns records management authority to the Department of
  Cultural Resources (DCR), regulates the destruction of public
  records, and instructs DCR to provide assistance to public
  officers in managing records.
• G.S. 132 is the Public Records Act, which identifies public
  records as the property of the people. This means that we, as
  government employees, are required to maintain public
  records and provide access to them upon request. G.S. 132
  also defines the term public record.
  CBE Records Retention Schedule
• A records retention and disposition schedule
  lists records as items. The county general
  schedule covers the items that are generally
  applicable to all county agencies/offices, like
  budget records and personnel files.
• Make sure you are as familiar with your
  County General Schedule as you are with the
  County Board of Elections Retention Schedule
  produced by the SBE.
The program schedule is specific to each
agency/office and the records that agency
creates; for example, the program schedule
for a county budget office will be different
from the county waste management office. If
there are any differences in how the general
and program schedules instruct you to handle
a record, always follow your agency-specific
program schedule.
Your program schedule is the County Board
of Elections Retention Schedule produced by
the SBE in cooperation with the counties.
• Keep all documents pertaining to ether State
  or Federal grants for at least five years after
• This would cover any funds that came from a
  HAVA or HAVA related source. At the time you
  applied for the grant, you would have been
  notified if it came from a HAVA source.
• These records can be kept electronically
  County Records Retention Focus
Cherie Poucher and Gary Simms….Wake County
Kathy Holland……………………….Alamance County
Dell Parker………………………………Scotland County
Lisa Bennett……………………………..Pamlico County
Laura Dell………………………………………………….. DET

SBE Staff Contact Person is Candi Rhinehart at
  (919) 715-4746
        Feedback Please!!!!
A draft revision of the county elections office
records retention schedule is being worked on
now. We are trying to allow more records to
be kept in electronic format. To this end, we
are working closely with the Office of State
Please give feedback on this revision by
communicating with Don Wright or Candi
Rhinehart at (919) 715-4746 or
  SBE Records Retention Schedule
• The SBE Records Retention Schedule is currently
  being updated with the emphasis on the increased
  use of electronic data and its storage and retrieval.
• Dealing with recently added documents currently not
  covered such as NVRA agency, list maintenance
  communications, NCOA data, and others.
• The SBE must follow the General Records Retention
  Manual that applies to all state agencies .
• The SBE Records Retention Schedule supplements
  the General State Records Retention Manual
               E-mail retention
• This has been a recently debated issue with a special
  panel appointed by former Governor Easley to study
  it in 2008.
• General prior state guidelines was to consider the
  content of the e-mail and save it or delete it using
  the same standard for other communications
  containing such content.
• E-mail of short-term value may be disposed of in
  conjunction with an approved records retention and
  disposition schedule, or when they no longer have
  reference value to the sender or receiver of the
  message. (“Thanks”, “See you at the meeting at 4”)
  It's the Content, Not the Format
• Remember, anything sent or received using e-mail can be a
  public record. It's the value of the content, not the format,
  that you should consider. As public records, e-mail messages
  are subject to the same retention and disposition
  requirements as the same type of record in another format or
• Some e-mail messages might have administrative value, which
  means they are useful in day-to-day business, but may not
  need to be kept permanently. Other messages may have legal,
  research, or fiscal value that will decide the length of
  retention based on your agency's schedule.
Watch Out for Confidential and
      Personal Content
Just because an e-mail message is identified as
a public record, it could still contain
confidential information that cannot be
shared. If you are required to provide records
as a result of a public records request, you
must securely remove any confidential or
privileged information from the records before
releasing them. BUT personal expressions in
public e-mail is not confidential (just ask the
ex-Mayor of Detroit).
 When managing your e-mail, ask the following
        questions of each message:
• Does the message have continuing or permanent value?
  If yes, keep and maintain according to records retention
  schedule. If not, once its value ends, delete and purge.
• Who else received this message?
  Only the primary keeper is responsible for maintaining the
  record copy. All other copies are reference copies and may be
  deleted when their reference value ends. See handouts.
• Is it a work in progress (draft)?
  In most cases, the final version is sufficient for long-term
  retention. If there is a final version, you can delete prior drafts
  of that document.
• Are you still unsure about what to do with the message?
  When in doubt, keep it!
Executive Order No. 150 (under review by Governor Perdue)
Issued the last day of Governor’s Easley’s term.
1.Confirms e-mail as public records .
2. No deletions of any e-mail prior to 24 hours of
   its receipt.
3. E-mails backed up daily and kept for 10 years.
4. Department of Cultural Resources (Records
   Div.) to train state employees , monitor e-mail
   procedures and random audit agencies as to
   e-mail policies.
5. Applies to the State, not counties
                 CONFIDENTIALITY AND
    Should be used by all county offices and executed by board members, director,
    all staff, and all temporaries with access to confidential information.

The form is of value in these ways:

•   1. It clearly states the importance to the employee of keeping the information
    confidential. No employee, contractor, or agent could say "I didn't know it was
    a big deal".

•   2. It gives a board or office a clear strong basis to take action against an
    employee who willfully violates the policy. The employee knows that
    compliance with the policy is required as a condition of continued

•   3. It assures the public we are aware of the importance of keeping their
    confidential information protected and lets the General Assembly know we
    are concerned as to this important issue.
   Employee Confidentiality Form
• Copies are available here at the conference
• Can be sent to counties upon request by e-
• Important to kept a signed form on those
  persons with current access to confidential
        Important points to remember:
• Plan ahead. If your records need to be retained
  permanently, then you need to think about what is
  the best way to do that.
• Active management of records, don’t store and
• Index or otherwise arrange for easy retrieval.
• Consult with others as needed ( the SBE can help)
• Prepare for a disaster or don’t make a disaster by
  sending an improper e-mail
• Regardless of the effort required, it is our legal
  obligation as stewards of public records to protect
  and preserve them.
                  On-Line Resources
    Government Records Branch of North Carolina
    Managing Public Records for Local Government Agencies
    Managing Your Inbox E-mail as a Public Record
    Managing Electronic Public Records Recognizing Perils and Avoiding
    Click on for the
•   Disaster Preparedness & Recovery (PowerPoint)
•   Managing Public Records in North Carolina (PowerPoint)
•   Scanning Public Records: Laying the Groundwork (PowerPoint)
•   Scanning and Microfilming (PowerPoint)
    We are at your service at the SBE


Don Wright…….(919) 715-5333 or

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