First, by way of introduction, my name is Jeremy Gibson, and I am a new Records Management Analyst at the State Records Center in Raleigh. I recently received my Masters Degree in Public History and Archives from North Carolina State University, and I have a background in software development, networking and food service.
We recently had a very good question from a local records custodian that illustrates many of the points that we are making in our Files and Filing workshop currently on tour throughout the state. The scenario presented was this:
A citizen made a request for all of the records in a series from their local records custodian. The custodian found that her office had over ten years of these records, which meant that a substantial amount of time would be required to find and copy the entire requested series. She asked the citizen if perhaps they could be more specific about the request in order to potentially limit the number of records that would need to be copied. The citizen declined and restated their request for the full series of records. Because the custodian had other obligations and vacation coming up, the time frame for the completion of the request was in weeks, rather than days, which upset the citizen.
The custodian wanted to know if there was any way to encourage the citizen to make a more limited request, and what was the time frame in which she had to respond to the request?
Contained in this question are a few larger issues related to public records law and the responsibilities of records custodians when responding to these requests.
First, under G.S. 132 (the Public Records Law), a broad request for a large series of records cannot be denied unless the request is so broad that the custodian of the records cannot identify the actual records that are being requested (David Lawrence, Public Records Law: For North Carolina Local Governments 2nd Ed., 40). In this particular case, however, it appears that the citizen has made a request for a specific type of record that just happens to cover a large amount of records.
Regarding the timeliness of the response, the law affixes no specific time, only that:
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)). Emphasis added.
Lawrence notes that in North Carolina there is no case law regarding the exact definition of “as promptly as possible,” but he suspects that it would be tied to the complexity of the request. For example, a request for a single record should probably take no longer than a day. However, in this particular case, which involves a large amount of records, the extra time necessary for the records custodian to make the copies is allowable under the law. If the time required is extensive, the records custodian should provide an estimated time of completion to the person making the request.
Can the records custodian encourage the citizen to limit the broad nature of the request? Although the records custodian may not deny the request, the citizen is responsible for the cost of the reproduction. The custodian may only charge the “minimal cost,” which under the law is “the actual cost of reproducing the public record or public information.” (G.S. 132-1(b)). Typically the “actual cost” means the cost of paper and toner. In this case, where the resulting copies may be very large, it is to the benefit of the citizen if the custodian, before copying the entire request, estimates the cost of responding to the citizen’s request.
Finally, we come to the cautionary tale. In this case, the retention period for the records series requested was 5 years. Since the request had been made, the records custodian cannot destroy any records covered by the request until after the request has been fulfilled, even if they had met their retention period. However, after the request has been completed, she may destroy the records that have met their retention period, thus making any future requests easier and less costly to fulfill. It should be noted, however, that records destruction should be done in the normal course of business. Which means, your office, agency, or municipality should have policies regarding the periodic destruction of aged out records. Selective destruction can look bad, even if nothing bad is intended.
Keep in mind that we in the Government Records Section write schedules in order to assist you, the records custodians, with potentially burdensome requests. Knowing the retention periods of your records and destroying records when you are legally allowed can save you and your agency time and taxpayer money, while ensuring that citizens may still get timely information about their government. Also, if you are interested, UNC’s School of Government has excellent articles on public records requests and how to approach large requests.