Responding to First Amendment Audits: Public Records Requests and First Amendment Audits

Published for Coates' Canons on November 29, 2022.

This post is Part 8 of a multi-part series co-authored by Kristi Nickodem and Kristina Wilson. For a more detailed explanation and legal analysis of the issues discussed in this blog post series (including citations to cases referenced in the post), please see Local Government Law Bulletin No. 141, Responding to First Amendment “Audits” in the Local Government Context. 

When asked about their business in a government building, some First Amendment auditors respond that they want to submit a public records request. The auditors then make the records request while filming and attempt to film the response. In this situation, the First Amendment and North Carolina’s Public Records Act intersect and govern how local government employees and officials can respond. Below are some key takeaways from public records law.  

1. The request does not need to be fulfilled immediately merely because an auditor is present and filming. 

The deadline for fulfilling public records requests under North Carolina’s Public Records Act depends on the type of request. If a requestor merely wants to read or inspect a document, the local government’s obligation under G.S. 132-6 is to arrange for the inspection “at reasonable times under reasonable supervision.” Neither the statute nor case law sets out an exact definition of “reasonable.” The legislature likely intended the reasonableness standard to be flexible, commonsense, and adaptable on a case-by-case basis. In the context of First Amendment auditing, a local government employee may invite the auditor to come back later in the day or the following day to allow them time to locate the document, make it available, and arrange for reasonable supervision. Providing the requested records within a day or a couple of business days would likely be reasonable depending on the size and nature of the request.  

If the requestor wants copies of a document, the statutory deadline in G.S. 132-6 is “as promptly as possible.” Neither the statute nor case law provides a hard-and-fast rule for sufficient promptness. Again, “as promptly as possible” is likely meant to be a flexible standard that considers differences in size and personnel capacity across agencies and variations in the complexity of requests. As with requests for inspection, there is nothing in the statute that requires an immediate response. Note that under G.S. 132-6.2(a), requestors are entitled to receive the copies in whatever format they request, to the extent possible. For example, if an auditor requests a hard copy of a document, even paperless local government agencies must provide a hard copy if they have a printer or access to a printer. Similarly, if an auditor wants an electronic copy of a record that is traditionally kept in hard copy, the unit must scan and email the document if it has the equipment to do so.   

As with any public record request, local governments may charge for the actual cost of making copies (see G.S. 132-6.2(b)). Under the statute, an actual cost is an expense that is directly chargeable from the reproduction of the records. Actual costs must be costs that the agency would not have incurred but for the public records request. For example, paper and ink are both actual costs because the agency would not be printing the public records request response on that paper using that ink had the request not been made. In contrast, personnel time used to make copies would not be an actual cost. The agency pays its personnel regardless of whether a public records request arises. Given the narrow nature of an actual cost, copy charges for public records requests are likely to be minimal but can be legally charged under North Carolina’s public records law.  

The North Carolina public records law does not allow local government employees to treat public records requests from First Amendment auditors differently than requests from other individuals or groups. If a local government office has a policy of answering public records requests in the order in which they are received, there is no legal basis to alter that policy merely to respond immediately to an auditor’s filmed request. However, an auditor may be under the mistaken impression that public records requests must be fulfilled immediately. How should local government employees respond? Local government employees may politely inform auditors of any local policies regarding answering requests in the order in which they are received. Employees should then consider laying out a tentative timeline for response with the requestor. If the auditor requests inspection, set a mutually convenient appointment for the auditor to return and inspect the document. If the auditor has requested copies, verify the auditor’s desired format for the copies. Local governments may also want to inform auditors that they may charge for the actual costs of making copies under G.S. 132-6.2(b) and may want to provide a fee estimate to alert the auditor of potential charges. Finally, local government employees may consider providing contact information so that the auditor can ask questions about their request.  

2. Auditors do not need to fill out a form or identify themselves in any way. 

Many local governments have policies governing how the public may submit public records requests. Often these policies specify that the request must be in writing and may require the requestor to identify themselves and the purpose of their request. While it is legal to enact such policies, local governments may not withhold public records based on non-compliance with such policies. Under North Carolina public records law, public records belong to the public and the public may access such records at free or minimal cost (see G.S. 132-1(b)). While there are some exceptions to this general rule, there is no authority allowing local governments to enforce policies that bar otherwise lawful access to public records. Moreover, G.S. 132-6(b) provides that no person may be required to disclose the motive or purpose of their public records request. A local government may seek information from a requestor but cannot deny a request based on a requestor’s failure to provide that information. 

3. Auditors can legally film the documents provided by a local government in response to a public records request.  

In addition to filming the request process, First Amendment auditors may also want to film the actual document they requested upon receipt. By filming public records disclosed by a local government, auditors are filming documents that the general public already has a legal right to inspect. Local government employees should be aware that, in the absence of a no-filming policy, the documents provided may be filmed. Accordingly, as with any public records request, employees should take special care to provide only those records to which the auditor is legally entitled. Even though a document may be a public record, certain information within the document may be confidential, such as social security numbers (G.S. 132-1.10) or certain personnel information (G.S. 160A-168; G.S. 153A-98). Local government employees must carefully redact public records containing confidential information before releasing them to the public.  

When an auditor uploads footage to the internet, individuals outside of North Carolina may access it. Does the fact that people in other states may view the footage have any legal ramifications? North Carolina public records law provides general access to “the public” as a whole and makes no distinctions based on a person’s residency or even their citizenship. As a result, out-of-state individuals are entitled to inspect North Carolina records under North Carolina public records law.  

 

Our final blog post in this series will address practical takeaways for local governments, including a discussion about creating and implementing policies regarding filming. Stay tuned! 

The post Responding to First Amendment Audits: Public Records Requests and First Amendment Audits appeared first on Coates’ Canons NC Local Government Law.

Topics - Local and State Government