AG 1995 10 02 - Laserfiche WebLink

Home Browse Search

the equipment for making a copy of a public record imposes no new cost. But some local governments depreciate on a unit-of-production basis, taking depreciation only as equipment is used. It' a local government uses that method of depreciation, making a copy does impose new costs, and depreciation may be included in the charge. The new section also allows a public agency to make a somewhat higher charge for a copy than otherwise when "the request is such as to require extensive use of information technology resources or extensive clerical or supervisory ~ assistance by personnel of the agency involved." This appears to permit charging for equipment use or employee time when making the copy takes an extraordinary mount of either equipment or employee time. If the requester believes a fee is unreasonable, he or she may ask the Information Resource Management Conmaission to mediate the dispute, but the - commission has no authority to order the public agency to reduce the fee. One final point about charges: G.S. 132-6(a), as rewritten, states that the custodian must provide copies upon payment of "any fees as may be prescribed by law." This language suggests that any fees that are charged must be in some fashion "prescribed by law." Therefore, any fee schedule ought to be formally adopted, either by the governing board or by the custodian pursuant to some sort of delegation fi'om the governing board. Who Pays for Separating Confidential from Open Material Local governments often maintain records that include both material open to the public and material that is not open to the public. Perhaps the best example is employee personnel files, some part of which is open although the greater part is not. The consistent law elsewhere has been that such a merger of confidential and open records does not justify denying access to the open portion of the record and that the custodian must take whatever steps are necessary to make the open portion available .for public access. The revisions confirm that this is also the law in North Carolina. What has not been consistent in other states is who pays for the cost of separating public from confidential materials. It' the records are kept in electronic form, for example, such a separation may involve writing a new computer program. Who is to pay for writing the program, the records requester or the government maintaining the record? The statute also answers that question, requiring the government to do so, but not inmaediately. If separation is necessary after the following dates, the agency or government maintaining the record must bear the cost of separation: tii state agencies: after June 30, 1996 1t cities of 10,000 or more and counties of 25,000 or more (and public hospitals within those units): after June 30, 1997 i1~ smaller cities and counties and other local government agencies: after June 30, 1998 The Form of Copies of Computerized Records One issue that has been litigated in several states has involved the form in which copies are provided of records maintained in computerized format. A local goverrm~ent, for example, may maintain a very large database of names and addresses that a company seeks tbr use as a mailing list. The list is much less valuable if the local government refuses to provide the database in magnetic form but insists on providing it in a paper printout. A number of requesters who have been denied a magnetic copy of the record have brought suit, arguing that they are entitled to a copy of the record in the form in which the public agency maintains the record. Although the trend of decisions has been to support the requesters' position, the courts have been split and it has not been possible to state with assurance how the North Carolina courts would respond to a comparable question. Chapter 388 resolves the question. The new G.S. 132-6.2(a) provides that a requester may seek a copy of a record in any medium in which the public agency is capable of providing it and that the custodian may not deny a request for a copy in a particular mediun~ simply because the custodian prefers to provide the copy in some other medium. (2) Thus if a record is maintained in magnetic form, a requester may seek a copy in the same form or, assuming the agency has this capability, in hard copy form. In addition, and again assuming agency capability, a requester may demand that a record maintained on tape on a mainframe computer be copied to individual computer disks. The Form of Copies and Who Must Make Them G.S. 132-6 has required that the custodian of records make a certified copy upon request, but it has not imposed on t.90-he custodian a direct duty to make noncertified copies. It has been clear that citizens are entitled to a noncertified copy of a public record, but it was possible to argue that the burden of making the copy could be placed on the citizen rather than the custodian. As rewritten by Chapter 388, G.S. 132-6 now makes clear that the custodian must make a copy on request, and that the citizen has the option of requesting either a certified or noncertified copy. Provisions That Add New Requirements