AG 1995 10 02 - Laserfiche WebLink

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Computer Databases When a local government or state agency "creates or compiles" a computer database, the new G.S. 132-6.1 Co) requires that it also prepare an index to the database containing the following information: (1) a list of data fields; (2) a description of the fon'nat or record layout; (3) information as to the frequency with which the database is updated; (4) a list of any data fields to which public access is restricted; (5) a description of each form in which the database can be copied or reproduced using the agency's or government's computer facilities; and (6) a schedule of fees for such copies. The statute directs the Division of ~axchives and History to develop the "form, content, language, and guidelines for the index and the databases.., in consultation with officials at other public agencies." The statute phases in this new requirement on the same sehedulea~ the new reci::(:ement for pay~g the cost of separating confidential from open material in a single record or set of records. The statute ~;lso provides that "electronic databases compiled or created pr/or to the date by which the index must be created.., may be indexed at the public agency's option." This provision appears to apply only to databases (1) created before the statutory date that (2) no longer have data being added to them. If data continues to be added to a database, that database is still being compiled and therefore would need to be indexed after the statutory date. The statutory requiremenf of an index applies to databases created and compiled "by a public agency." The quoted language seems to require that such a database have some official standing and be one that is maintained to serve some purpose of the agency as a whole. IvIany public employees with personal computers maintain a variety of small databases to help them with their.iobs: an employee may maintain a list of telephone numbers on computer or establish a temporary database to help in preparing a report for a supervisor. These kinds of databases are almost certainly public record because they are kept by public employees on publicly owned computers, but they are not created by a public agency. Therefore, the indexing requirement does not appear to apply to such personal-assistance databases. Written Requests for Copies; Written Explanations When Requests Are Denied The new G.S. 132-6.2(c) expressly permits a public agency to require written requests for copies of computer databases. It makes no other provision about written requests, either to inspect records or for copies of noncomputerized records. The express statutory authorization for written requests for one kind of record may suggest that a local government may not require written requests for other sorts of records. Nevertheless, ifa local government receives a large volume of requests and if a requirement of a written request is not imposed or implemented in order to impede the right of inspection, courts probably would sustain such a requirement. Requiring written requests when there is a heavy demand for an agency's records can maintain order in a potentially chaotic situation and can also assist in finding the records and filling the requests. If an agency den/es a request for a copy of a computer database, the new statutory provision requires the custodian to explain the basis for the denial. If the requester asks, the explanation must be made in writing. Geographic Information Systems Over the last several years, the General Assembly has enacted a number of local acts that limit, in the governments covered by the acts, a citizen's right to a copy of records from a computerized geographic information system. Chapter 388 extends the general provisions of those local acts statewide. Local governments must still make available electronic copies of such systems, but only if the recipient agrees in writing not to resell or othenvise use the information for trade or commercial purposes. (Publication or broadcast by the news media is stated as not being for trade or conmaercial purposes, as is use of the intbrmation, without resale, by a licensed professional in the course of his or her work.) If someone wishes to resell the information or otherwise use it for trade or commercial purposes, the agency may charge whatever price for the copy that it wishes to. Remedies Chapter 388 adds enforcement provisions to the public records law that parallel those added to the open meetings law in 1994. Ifa person is denied access to a record or is denied a copy cfa record, he or she may bring an action that will then receive accelerated treatment in the court system. If a plaintiff prevails in such an action, the court may award attomey fees to the plaintiff if it finds the agency "acted without substantial justification" and that "there are no special circtm~stances that would make the award.., unjust." The court may also order that some or all of such an award of attorney fees be paid by the employee or official denying access or a copy, if the individual defendant "knowingly or intentionally" violated the statute. If the employee or official sought and followed the advice of an attorney, however, no such award can be made against the individual.