Confidentiality of Local Elected Officials’ Records

The question frequently comes up whether the personnel privacy statutes apply to elected local government officials. In his book Public Records Law for North Carolina Local Governments, Professor David Lawrence cites that a NC Supreme Court case held that persons applying for the position of sheriff were “applicants for employment” under the county personnel privacy statute. This ruling presumably would apply to other full-time elected officials such as Registers of Deeds.

The ruling does not address part-time elected officials, such as city council members or county commissioners.

However, G.S. 128-21(10), which defines employees for purposes of the Local Government Retirement Systems, excludes “such employees who hold office by popular election as are not required to devote a major portion of their time to the duties of their office.”

There are instances where these part-time elected officials are treated like employees, for example, when income taxes are withheld from any payment they receive or their participation in benefit programs. In these cases, Lawrence says insurance applications and income tax withholding forms “might be protected by the statutes.”

The statutes are not as clear on the above examples as they are in some other matters of public records law. Professor Lawrence relies on his interpretation of several cases, both in and out of NC, to reach his conclusions. Lawrence’s book, your Local Records Analysts, and the folks at the School of Government are all excellent resources for questions about the confidentiality of public records.

Another question that comes up is whether or not elected officials’ home phone numbers or home addresses are open for public inspection. There is no statute that makes this information confidential. In the case of local government employees, this information usually resides in their personnel files and is made confidential by the personnel privacy statutes. Except for cases such as tax withholding records and insurance records, these elected officials are not treated as employees and are not subject to the personnel privacy statutes.

What about the correspondence of elected officials? The definition in G.S. 132.1-1(a) applies here: no matter what format the record is in, if it was made or received “in the transaction of public business,” then it is a public record. So any correspondence with town staff or officials concerning town business would be open for public inspection (of course, the council member is keeping open meetings law in mind when communicating with other council members). Correspondence with constituents about municipal services or business would likewise be a public record.   Of course, an elected official can correspond with a constituent about personal matters or political party and campaign issues. Correspondence of that sort is likely personal in nature and not subject to public records law.

Frequently, elected officials may correspond with political party officials or elected officials in other towns about party business. Since correspondence of this type is not part of their job duties, these records would not be open for public inspection. As with other public records, it does not matter if the record was created with a personal device or a government provided computer or phone; nor if it was created with a government email account or personal account. Of course, any confidentiality statutes are still applicable, for example, certain economic development records or attorney-client privilege.

Since the emails of elected officials are records often requested by the public and the media, it is very important that those officials keep their work and personal emails in separate folders to make fulfilling these requests easier.

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  1. Pingback: FAQ: Are they personnel? « The G.S. 132 Files

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