What is a public record?
In North Carolina, public records are defined as “documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics.” Public records are further defined as the records of an agency of North Carolina government or its subdivisions, which means the records of every “public office, public officer or official (State or local, elected or appointed), institution, board, commission, bureau, council, department, authority or other unit of government of the State or of any county, unit, special district or other political subdivision of government.” That means all levels of government, including advisory boards, commissions, and ad hoc committees.
The definition of public records includes all records “made or received pursuant to law or ordinance in connection with the transaction of public business.” According to the North Carolina attorney general, this definition encompasses not just materials created by government entities and employees but also “materials written or made by private people or companies that are submitted to the government, regardless of whether those materials were required or requested by the government or whether they were sent to the government voluntarily at the private person’s initiative.” The N.C. Court of Appeals has affirmed this broad interpretation. Therefore, it is well settled that all records kept by a public official or agency in carrying out the agency’s lawful duties qualify as public records absent a specific exemption that prevents disclosure. The statutory phrase “made or received pursuant to law” clearly means records of all forms of transacting public business as opposed to purely private acts. The broad definition of public records also suggests that the law covers records relating to multi-state or regional bodies if North Carolina public officials are members.
What is a public agency?
The Public Records Law covers records relating to public business transacted by any agency of the state or its subdivisions. In 1981 the N.C. Court of Appeals relied on federal case law to define a public agency as “any administrative unit with substantial independent authority in the exercise of specific functions. Administrative entities that perform neither rule-making nor adjudicative duties also may be agencies. ‘The important consideration is whether [the administrative entity] has any authority in law to make decisions.’” The court applied that definition to the former Wake County Hospital System, a non-profit corporation that was originally established to provide medical care to the general public, and found the hospital to be a public agency subject to the Public Records Law. The court concluded that despite its private, non-profit status, it was so intertwined financially and administratively with county government that it qualified as a public agency. The county owned the hospital building and leased it to the hospital corporation for $1 per year, reviewed and approved the hospital’s annual budget, financed the hospital through county bond orders and approved the members of the hospital’s board of directors.
In 1999 the N.C. Court of Appeals ruled in another case that hinged in part on whether the telephone company MCI was a private entity or a public agency under the law. The court ruled that the common carrier utility was not a public agency under the law because the telephone company exercised sufficient authority over corporate business independently of the N.C. Utilities Commission’s regulatory control over the company. However, in 2004 the N.C. Court of Appeals noted strongly that “an entity’s stated purpose of performing a function that is of use to the general public, without more, is insufficient to make the Public Records Law applicable.” Whether an entity qualifies as an “agency” will depend on many factors, including the level of sovereign control the government exercises over the activities, resources, property, and decisions of the entity.
While “agency” is defined broadly, it does not automatically include nongovernmental organizations that receive public funds or benefits. In 1992 the Microelectronics Center of North Carolina (MCNC), a non-profit corporation created by the state and funded with more than $240 million in public money to foster the burgeoning tech industry, signed a consent judgment agreeing to comply with most of the provisions of the Public Records Law, but it did not admit being an agency bound by the Public Records Law. Environmental advocacy organizations also argued unsuccessfully that the North Carolina Railroad, a non-profit whose sole shareholder is the state of North Carolina, should be subject to the Public Records Law. The N.C. Railroad case is discussed later in this chapter (See Railroad records).