Public Records Impacts of the 2015 Long Session

The North Carolina General Assembly wrapped up its 2015 long session on September 30th.  A number of laws enacted during these months will have an impact on the creation of or access to public records:

• S.L. 2015-7 (SB 14) clarifies that the Academic Standards Review Commission — established by S.L. 2014-78 and under the purview of the Department of Administration — is subject to public records law.  In addition, the Commission must publish on its website all minutes, agendas, handouts, and presentations along with any audio recordings of meetings.  All official meetings must be livestreamed.

• S.L. 2015-62 (HB 465) creates a Maternal Mortality Review Committee.  The information collected by this committee will not be admissible in court proceedings and will be considered confidential.  The work of this committee is not subject to open meetings or public records provisions.  This law also specifies that the information a physician submits to the Department of Health and Human Services regarding abortions is not subject to public records disclosure.

• S.L. 2015-123 (SB 578) adds subsection G.S. § 110-105.3, placing responsibility for investigating child maltreatment on the Division of Child Development and Early Education within the Department of Health and Human Services (DHHS).  This statute also specifies that information gathered in the course of investigating alleged child maltreatment is confidential (with the exceptions that it can be disclosed in order to protect a child or in accordance with a court order).  DHHS is also authorized to demand of any public or private agency information or reports relevant to the investigation of child maltreatment — even if these documents are confidential (but not if they are protected by attorney-client privilege).  G.S. § 110-105.5 mandates the creation of a child maltreatment registry, and the names of the caregivers who have been confirmed by DHHS of having maltreated a child will be public.

• S.L. 2015-142 (SB 299) adds G.S. § 136-276, which exempts usage contracts between carriers and the State Ports Authority from public records disclosure.

• S.L. 2015-146 (HB 288) amends the language of G.S. § 58-19-40 to say that records related to an investigation by the Department of Insurance are not public records and cannot be subject to subpoena or discovery.

• G.S. § 15-190(a) already specified that the identities of witnesses to the execution of a death sentence as well as those who carry out the execution are confidential and not subject to public records disclosure.  S.L. 2015-198 (HB 774) adds a provision to G.S. § 132-1.2 specifying that information about persons or entities that produce, prescribe, or administer drugs or supplies for lethal injections are not subject to public records disclosure.

• S.L. 2015-189 (HB 797) adds a subsection to G.S. § 132-1.7 to exclude from public records disclosure any information gathered as a result of a municipal alarm registration ordinance.  This includes names, home and business telephone numbers, personal identifying information, and residential or office blueprints and alarm system schematics.

• S.L. 2015-203 (HB 556) implements the federal Achieving a Better Life Experience (ABLE) Act and specifies that information related to ABLE accounts is not subject to public records disclosure.

• S.L. 2015-218 (HB 184) adds a section to the Public Records Act (G.S. § 132-11) creating a sunset provision on the confidentiality of public records.  There are five listed exceptions, but otherwise, confidentiality expires 100 years after the record was created.  (The exceptions include those records sealed by a court; those prohibited from disclosure by federal law; those containing Social Security numbers; prison inmate records; and detailed plans and drawings of public buildings and infrastructure facilities.)  This law also modifies G.S. § 121-25 to declare as public records “all photographs, video recordings, or other documentary materials of a derelict vessel or shipwreck or its contents, relics, artifacts, or historic materials in the custody of any agency of North Carolina government or its subdivisions.”

• S.L. 2015-225 (SB 699) amends the personnel statutes for municipal and county employees to prohibit the disclosure of three pieces of information about sworn law enforcement officers:
  1. Information that might identify the residence of a sworn law enforcement officer
  2. Emergency contact information
  3. Any identifying information as defined in G.S. § 14-113.20

  It also adds to G.S. § 132-1.7 a subsection that exempts from public records disclosure mobile telephone numbers issued by local, county, or State government to sworn law enforcement officers and other employees of public law enforcement agencies, employees of fire departments, and emergency responders.

• S.L. 2015-241 (HB 97) is the budget appropriations bill, but it also includes numerous provisions related to public records:
  • All documents of the Governor and the State Treasurer related to the administration of the Escheat Fund are public records, although some may be confidential.
  • With the creation of the new Department of Information Technology, a provision was added to G.S. § 143B specifying that criminal background checks of employees or prospective employees of the department are not public records (as is the case with all other background checks and already codified throughout the General Statutes).  Another addition (G.S. § 143B-1323(e)) defines contract information as public record after the award of the contract, although some information may remain confidential according to G.S. § 132-6.1(c).
  • State agencies are required to provide to the State CIO detailed information regarding IT security plans, incidents, and future needs and capabilities.  All of this information is exempt from public records disclosure according to G.S. § 132-6.1(c).
  • State agencies are required to share data with the Government Data Analytics Center (GDAC), and information collected by GDAC is protected from release and disclosure.  This data collected from State agencies does not change status by coming into GDAC (i.e., if it was confidential in agency, it’s still confidential in GDAC) and legally remains in the custody of the creating agency.  The State CIO has sole discretion whether to release as a public record information compiled by GDAC, though information from the North Carolina Rate Bureau related to workers’ compensation insurance claims, business ratings, or premiums specifically cannot be disclosed.
  • The Department of Public Safety, Division of Emergency Management, and the Center for Safer Schools will create a statewide School Risk and Response Management System.  All data and information in this system are not subject to public records disclosure.  Charter schools and regional schools are encouraged to provide school safety information to the Division of Emergency Management, and this information is also not subject to public records disclosure.  Local school administrative units are encouraged to create anonymous safety tip lines, and information gathered through this mechanism is not subject to public records disclosure.
  • The parameters of sensitive public security information defined in G.S. § 132-1.7 are expanded to include “plans, schedules, or other documents that include information regarding patterns or practices associated with executive protection and security,” specific security information and plans for prison operations, and specific plans and practices “to prevent or respond to criminal, gang, or organized illegal activity.”  All of this information is exempt from public records disclosure.

If you have questions about how any of these changes affect the public records that you create and maintain in your agency, feel free to contact a records management analyst in the Government Records Section.  If you need assistance interpreting the legal implications of these changes, we encourage you to dialogue with your Public Information Officer or General Counsel.