TAR HEEL VIEW: Cooper’s guidelines on sunshine laws are an encouraging step

Just in time for Sunshine Week, Gov. Roy Cooper’s office has released a working draft of guidelines to help state and local government agencies as they receive and respond to public records requests.

The four-page document provides practical guidance and plain-language interpretation of the North Carolina Public Records Act. It’s intended for city, county and state officials, but instead of seeking loopholes in the law to stitch together a case for government secrecy, Cooper and his staff show themselves to be strong advocates for the public’s right to know.

“State employees and officials conduct the people’s business,” the document states. “Our responsibility rests with following the law and providing members of the public with the information to which they are legally and ethically entitled.”

The guidelines aren’t yet official — there’s a 30-day public comment period during which stakeholders can review the document and weigh in. Seekers of North Carolina’s public records should be at least as well-represented as record-keepers. To read the full draft and submit comments by April 9, visit https://governor.nc.gov/news/public-records-guidance.

City and county governments won’t be obligated to follow Cooper’s interpretation of state sunshine laws, though state agencies that report to the governor’s office will. However, disregarding the guidance would be reckless, as the judges who hear public records lawsuits are likely to consider the executive branch’s position when resolving disputes over the law’s effects.

Here are several guidelines from the draft document that local governments should find instructive:

• While agencies may ask for written requests for their records in order to assure accuracy, they cannot require it.

• There is no requirement that the person making the request provide his or her name or any identification.

• The public has a right to see a meeting agenda and documents from the meeting. This applies as well to any written minutes of closed meetings, once the situation that prompted the closed meeting has passed.

• Agencies may charge a nominal copying fee for records produced in printed format. Five cents per page is recommended, but no fee charged should exceed the actual cost of making copies. No fees may be charged for inspecting public records or records produced electronically.

• Public employees may not withhold records based on the agency or commission’s belief that immediate release of the records would not be “prudent or timely” or cause embarrassment.

• When a records request is submitted, records must be provided as soon as reasonably possible, whether all at once or as they become available. Producing information on a rolling basis can allow requesters to get information requiring no redactions quickly while review of other records is ongoing.

• The determination of a public record is whether it’s made or received in connection with public business. Therefore, your personal email, personal mobile phone records or social media posts may contain public records. That means you and anyone in your agency who uses any business or personal device to conduct public business are required to retain the public records and produce them in response to requests.

Cooper and his staff aren’t reinventing the wheel — just repackaging a law already on the books and spelling things out to prevent misunderstandings and head off differences of interpretation. The governor’s guidance is firmly supported by the Public Records Act’s full text and a litany of court decisions that establish a presumption of openness.

The state law itself, in its definition of public records that serves as a sort of preamble, states that records made or received in connection with public business are “the property of the people.” Government officials are custodians, not owners, of those records.

Cooper’s commonsense interpretations should be intuitive, but many elected and appointed leaders mistakenly believe their jobs are easier the more secrets they’re able to keep. The governor’s guidelines ought to set them straight.

The Wilson Times

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