What constitutes access?
The Public Records Law says, “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.” Custodians are the persons who in fact possess the records. The Public Records Law says that access to public records must be granted by “[e]very custodian of public records….” Thus requests can be, and are, addressed to virtually any public employee. However, the law clarifies that the “custodian” who is legally bound to grant access does not include “an agency that holds the public records of other agencies solely for purposes of storage or safekeeping or solely to provide data processing.” Records should be disclosed “as promptly as possible.” No specific time frame for a response or production is mandated by North Carolina law. Therefore, delay is often a major hurdle faced by journalists and the public when seeking access to records.
A Buncombe County case tested these basic access issues when a group sued Buncombe County over its “Multiple Information Requests Policy” that required citizens seeking public records from the county to submit written requests to the county manager. The court declared that portion of the policy void, explaining that the law does not permit government to impose a “gatehouse” or “overseer” between members of the public who desire access to records and custodians of records. The court said, however, that the county was entitled to develop reasonable rules governing its production of public records, including processing only written requests for voluminous records, paying copying fees in advance, and waiting a reasonable time for production.
With few exceptions, access to records may be obtained at all reasonable times and in all formats in which the agency is capable of providing access. Requests for copies of computer databases may be required to be made in writing. Additionally, requests for copies of a geographical information system may require the requester to agree in writing not to use the record for commercial purposes. A public agency is not obliged to respond to requests for copies of public records outside of its usual business hours. Neither is it required to create or compile a record that does not exist.
