Open Meetings & Public RecordsJOSH LAWSON, PIO

TUESDAY, MARCH 31, 2015

AGENDA

1.OPEN MEETINGS 2.PUBLIC RECORDS

4 Attorneys / 1 Geneticist

JOSH HOWARD

-CHAIRMAN-

RHONDA AMOROSO

-SECRETARY-

JOSHUA MALCOLM-MEMBER-

MAJA KRICKER

-MEMBER-

PAUL FOLEY

-MEMBER-

The Press

Litigation

Also . . .

RULE OF LAW

OPEN MEETINGS

Chapter 143, Art. 33c (GS §§ 143-318.9 – 318.18)

PURPOSEBecause governmental bodies “exist solely to conduct the people's business, it is the public policy of North Carolina that the hearings, deliberations, and actions of these bodies be conducted openly.” GS § 143-318.9

MANDATE“Each official meeting of a public body shall be open to the public, and any person is entitled to attend such a meeting.” GS § 143-318.10(a)

A MEETING IS . . . 1. Majority of members2. Deliberating, hearing, voting, or

otherwise transacting business of the public

GS § 143-318.10(d)

A MEETING IS NOT . . . “A social meeting or other informal assembly or gathering . . . unless called or held to evade the spirit and purposes of this Article.” GS § 143-318.10(d)

KEEPING A RECORD1. Standard: “full and accurate minutes”2. Written or recorded (audio/video)3. Become public records (even for closed

sessions, once disclosure would not frustrate the purpose of the closed session) GS § 143-318.10(d)

TYPES OF MEETINGS

1. Regularly Scheduled Meetings

2. Special Meetings 3. Emergency Meetings

NOTICE

Required modes of notice differ between types of meetings.

NOTICE

Regularly Scheduled Meetings1. CBE website 2. Principle bulletin boardChange: Must be posted at least 7 days before first meeting GS § 143-318.12(a)

NOTICE

Special Meetings 1. CBE website 2. Principle bulletin board 3. Email/mail to notice list (press or public) At least 48 hours before meeting GS § 143-318.12(b)1,2

NOTICE

Emergency Meetings1. Time, place, subject CBE website (only if

maintained by CBE)2. Email/phone to notice list (press or

public) GS § 143-318.12(b)(3) 3. Post it if you can.

SPECIAL NOTE

Emergency Meetings1. “Generally unexpected circumstances

that require immediate consideration by the public body.” GS § 143-318.12(f)

2. Only noticed business considered

SPECIAL NOTE

Telephonic Meetings1. Mode of communication does not affect

the type of meeting2. CBE must provide a location at which

public can listen-in. GS § 143-318.13(a)

CLOSED SESSION

Process1. Notice and commence a meeting2. Motion for closed session citing a

purpose permitted by statute3. Majority vote on the motion.

CLOSED SESSION

Permissible Purposes (a few)1. Prevent disclosure of confidential information

2. Preserve privilege (atty/client)

3. Consideration of specific personnel matters (not general personnel policy)

4. Instructing staff to take a particular negotiation position

GS § 143-318.11

JUDICIAL REMEDIES1. Injunctive relief GS § 143-318.16 2. Declaratory relief: Nullify action taken

improperly (must be filed within 45 days of notice) GS § 143-318.16A

*Court may order losing party to pay (even individual members, unless relied on counsel). GS § 143-318.16B

NOTE ON DIR. OF ELECTIONSDirectors of Election are best positioned to ensure that their CBE is ready to deliberate in open meetings and work proactively to ensure CBE stays on the right side of Open Meetings Law.

PUBLIC RECORDS

Chapter 132 (GS §§ 132-1 – 10)

PURPOSEBecause public records and public information are “the property of the people . . . . the people may obtain copies of their public records and public information free or at minimal cost.” GS § 143-318.9

“PUBLIC RECORD”Anything made or received in connection with the transaction of public business, “regardless of physical form or characteristics” GS § 132-1(a)

“PUBLIC RECORD”

Physical Form . . .– Text messages – Voicemails – Browsing history – Metadata

NOT “PUBLIC RECORD”

Information: Cannot compel creation of a public record.

*Redaction isn’t creation: GS § 132-6(b)*

NOT “PUBLIC RECORD”1. Electronically captured image of an individual's

signature2. Date of birth3. Drivers license number4. Personnel records5. Criminal Investigations 6. Confidential voter addresses

RETENTIONDifferent public records (and even

confidential ones) have different retention schedules. GS § 132-2

bit.ly/CBERetention

PUBLIC ACCESS

Provide access to public records upon request “as promptly as possible” without inquiring into the requester’s purpose.GS § 132-6

PUBLIC ACCESS Provide in the medium requested: “No request for copies of public records in a particular medium shall be denied on the grounds that the custodian has made or prefers to make the public records available in another medium.” GS § 132-6

PUBLIC ACCESS Costs It is permissible to charge copying costs and the actual costs of clerical works, so long as the charges are reasonable. But consult with your county attorney. GS § 132-6.2(b)

JUDICIAL REMEDIESCompel disclosure GS § 132-9*Court may order losing party to pay (unless CBE relied on AG Opinion, Court Order, or Published Opinion). Can be assessed personally against official if knowingly violated Public Records Law.

PRACTICAL POINTSConsult with your county attorney often.Stay familiar with your county’s preferred manner of handling requests.Be aware of the broader reasons groups may be seeking information SBE staff want to help where possible.

A QUICK NOTE

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JOSH LAWSON JOSH.LAWSON@NCSBE.GOV 919-715-9194