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State Archivist and Records Manager:

Jeffrey J. Crow, Director Div. of Archives & History

109 E. Jones St., Raleigh NC 27601-2807

919-733-7305 fax: 919-733-8807


State Archivist & Records Administrator

919-733-3952 fax: 919-733-1354

Larry Misenheimer, Deputy Ddirector

Acting State Electronic Records Officer

e-mail: lmisenheimer@ncsl.dcr.state.nc.us

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North Carolina

State Public Records Law


North Carolina General Statutes


Chapter 132.

Public Records.


Last amended July 10, 1995

Effective October 1, 1995


Contents


Section Title


132-1.

"Public records" defined.

132-1.1.

Confidential communications by legal counsel to public board or

agency; State tax information.

132-1.2.

Confidential information.

132-1.3.

Settlements made by or on behalf of public agencies, public officials,

or public employees; public records.

132-1.4.

Criminal investigations; intelligence information records.

132-2.

Custodian designated.

132-3.

Destruction of records regulated.

132-4.

Disposition of records at end of official's term.

132-5.

Demanding custody.

132-5.1.

Regaining custody; civil remedies.

132-6.

Inspection and examination of records.

132-6.1.

Electronic data-processing records.

132-6.2.

Provisions for copies of public records; fees.

132-7.

Keeping records in safe places; copying or repairing; certified

copies.

132-8.

Assistance by and to Department of Cultural Resources.

132-8.1.

Records management program administered by Department of Cultural

Resources; establishment of standards, procedures, etc.; surveys.

132-8.2.

Selection and preservation of records considered essential; making or

designation of preservation duplicates; force and effect of duplicates

or copies thereof.

132-9.

Access to records.

132-10.

Qualified exception for geographical information systems.


132-1. "Public records" defined.


(a) "Public record" or "public records" shall mean all 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, made or received pursuant to law or ordinance in

connection with the transaction of public business by any agency of

North Carolina government or its subdivisions. Agency of North

Carolina government or its subdivisions shall mean and include 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.


(b) The public records and public information compiled by the agencies

of North Carolina government or its subdivisions are the property of

the people. Therefore, it is the policy of this State that the people

may obtain copies of their public records and public information free

or at minimal cost unless otherwise specifically provided by law. As

used herein, "minimal cost" shall mean the actual cost of reproducing

the public record or public information.

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132-1.1. Confidential communications by legal counsel to public board or

agency; State tax information.


(a) Confidential Communications. - Public records, as defined in G.S.

132-1, shall not include written communications (and copies thereof)

to any public board, council, commission or other governmental body of

the State or of any county, municipality or other political

subdivision or unit of government, made within the scope of the

attorney-client relationship by any attorney-at-law serving any such

governmental body, concerning any claim against or on behalf of the

governmental body or the governmental entity for which such body acts,

or concerning the prosecution, defense, settlement or litigation of

any judicial action, or any administrative or other type of proceeding

to which the governmental body is a party or by which it is or may be

directly affected. Such written communication and copies thereof shall

not be open to public inspection, examination or copying unless

specifically made public by the governmental body receiving such

written communications; provided, however, that such written

communications and copies thereof shall become public records as

defined in G.S. 132-1 three years from the date such communication was

received by such public board, council, commission or other

governmental body.


(b) State Tax Information. - Tax information may not be disclosed

except as provided in G.S. 105-259, 153A-148.1, and 160A-208.1. As

used in this subsection, "tax information" has the same meaning as in

G.S. 105-259.

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132-1.2. Confidential information.


Nothing in this Article shall be construed to require or authorize a

public agency to disclose any information which:


(1) Constitutes a "trade secret" as defined in G.S. 66-152(3);

(2) Is the property of a private "person" as defined in G.S.

66-152(2);

(3) Is disclosed or furnished to the public agency in connection

with the owner's performance of a public contract or in

connection with a bid, application, proposal, industrial

development project, or in compliance with laws, regulations,

rules, or ordinances of the United States, the State, or

political subdivisions of the State; and

(4) Is designated or indicated as "confidential" or as a "trade

secret" at the time of its initial disclosure to the public

agency.

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132-1.3. Settlements made by or on behalf of public agencies, public

officials, or public employees; public records.


(a) Public records, as defined in G.S. 132-1, shall include all

settlement documents in any suit, administrative proceeding or

arbitration instituted against any agency of North Carolina government

or its subdivisions, as defined in G.S. 132-1, in connection with or

arising out of such agency's official actions, duties or

responsibilities, except in an action for medical malpractice against

a hospital facility. No agency of North Carolina government or its

subdivisions, nor any counsel, insurance company or other

representative acting on behalf of such agency, shall approve, accept

or enter into any settlement of any such suit, arbitration or

proceeding if the settlement provides that its terms and conditions

shall be confidential, except in an action for medical malpractice

against a hospital facility. No settlement document sealed under

subsection (b) of this section shall be open for public inspection.


(b) No judge, administrative judge or administrative hearing officer

of this State, nor any board or commission, nor any arbitrator

appointed pursuant to the laws of North Carolina, shall order or

permit the sealing of any settlement document in any proceeding

described herein except on the basis of a written order concluding

that (1) the presumption of openness is overcome by an overriding

interest and (2) that such overriding interest cannot be protected by

any measure short of sealing the settlement. Such order shall

articulate the overriding interest and shall include findings of fact

that are sufficiently specific to permit a reviewing court to

determine whether the order was proper.


(c) Except for confidential communications as provided in G.S.

132-1.1, the term "settlement documents," as used herein, shall

include all documents which reflect, or which are made or utilized in

connection with, the terms and conditions upon which any proceedings

described in this section are compromised, settled, terminated or

dismissed, including but not limited to correspondence, settlement

agreements, consent orders, checks, and bank drafts.

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132-1.4. Criminal investigations; intelligence information records.


(a) Records of criminal investigations conducted by public law

enforcement agencies or records of criminal intelligence information

compiled by public law enforcement agencies are not public records as

defined by G.S. 132-1. Records of criminal investigations conducted by

public law enforcement agencies or records of criminal intelligence

information may be released by order of a court of competent

jurisdiction.


(b) As used in this section:


(1) "Records of criminal investigations" means all records or any

information that pertains to a person or group of persons that is

compiled by public law enforcement agencies for the purpose of

attempting to prevent or solve violations of the law, including

information derived from witnesses, laboratory tests,

surveillance, investigators, confidential informants,

photographs, and measurements.

(2) "Records of criminal intelligence information" means records

or information that pertain to a person or group of persons that

is compiled by a public law enforcement agency in an effort to

anticipate, prevent, or monitor possible violations of the law.

(3) "Public law enforcement agency" means a municipal police

department, a county police department, a sheriff's department, a

company police agency commissioned by the Attorney General

pursuant to G.S. 74E-1, et seq., and any State or local agency,

force, department, or unit responsible for investigating,

preventing, or solving violations of the law.

(4) "Violations of the law" means crimes and offenses that are

prosecutable in the criminal courts in this State or the United

States and infractions as defined in G.S. 14-3.1.

(5) "Complaining witness" means an alleged victim or other person

who reports a violation or apparent violation of the law to a

public law enforcement agency.


(c) Notwithstanding the provisions of this section, and unless

otherwise prohibited by law, the following information shall be public

records within the meaning of G.S. 132-1.


(1) The time, date, location, and nature of a violation or

apparent violation of the law reported to a public law

enforcement agency.

(2) The name, sex, age, address, employment, and alleged

violation of law of a person arrested, charged, or indicted.

(3) The circumstances surrounding an arrest, including the time

and place of the arrest, whether the arrest involved resistance,

possession or use of weapons, or pursuit, and a description of

any items seized in connection with the arrest.

(4) The contents of "911" and other emergency telephone calls

received by or on behalf of public law enforcement agencies,

except for such contents that reveal the name, address, telephone

number, or other information that may identify the caller,

victim, or witness.

(5) The contents of communications between or among employees of

public law enforcement agencies that are broadcast over the

public airways.

(6) The name, sex, age, and address of a complaining witness.


(d) A public law enforcement agency shall temporarily withhold the

name or address of a complaining witness if release of the information

is reasonably likely to pose a threat to the mental health, physical

health, or personal safety of the complaining witness or materially

compromise a continuing or future criminal investigation or criminal

intelligence operation. Information temporarily withheld under this

subsection shall be made available for release to the public in

accordance with G.S. 132-6 as soon as the circumstances that justify

withholding it cease to exist. Any person denied access to information

withheld under this subsection may apply to a court of competent

jurisdiction for an order compelling disclosure of the information. In

such action, the court shall balance the interests of the public in

disclosure against the interests of the law enforcement agency and the

alleged victim in withholding the information. Actions brought

pursuant to this subsection shall be set down for immediate hearing,

and subsequent proceedings in such actions shall be accorded priority

by the trial and appellate courts.


(e) If a public law enforcement agency believes that release of

information that is a public record under subdivisions (c)(1) through

(c)(5) of this section will jeopardize the right of the State to

prosecute a defendant or the right of a defendant to receive a fair

trial or will undermine an ongoing or future investigation, it may

seek an order from a court of competent jurisdiction to prevent

disclosure of the information. In such action the law enforcement

agency shall have the burden of showing by a preponderance of the

evidence that disclosure of the information in question will

jeopardize the right of the State to prosecute a defendant or the

right of a defendant to receive a fair trial or will undermine an

ongoing or future investigation. Actions brought pursuant to this

subsection shall be set down for immediate hearing, and subsequent

proceedings in such actions shall be accorded priority by the trial

and appellate courts.


(f) Nothing in this section shall be construed as authorizing any

public law enforcement agency to prohibit or prevent another public

agency having custody of a public record from permitting the

inspection, examination, or copying of such public record in

compliance with G.S. 132-6. The use of a public record in connection

with a criminal investigation or the gathering of criminal

intelligence shall not affect its status as a public record.


(g) Disclosure of records of criminal investigations and criminal

intelligence information that have been transmitted to a district

attorney or other attorney authorized to prosecute a violation of law

shall be governed by this section and Chapter 15A of the General

Statutes.


(h) Nothing in this section shall be construed as requiring law

enforcement agencies to disclose the following:


(1) Information that would not be required to be disclosed under

Chapter 15A of the General Statutes; or

(2) Information that is reasonably likely to identify a

confidential informant.


(i) Law enforcement agencies shall not be required to maintain any

tape recordings of "911" or other communications for more than 30 days

from the time of the call, unless a court of competent jurisdiction

orders a portion sealed.


(j) When information that is not a public record under the provisions

of this section is deleted from a document, tape recording, or other

record, the law enforcement agency shall make clear that a deletion

has been made. Nothing in this subsection shall authorize the

destruction of the original record.


(k) The following court records are public records and may be withheld

only when sealed by court order: arrest and search warrants that have

been returned by law enforcement agencies, indictments, criminal

summons, and nontestimonial identification orders.


(l) Records of investigations of alleged child abuse shall be governed

by G.S. 7A-675.

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132-2. Custodian designated.


The public official in charge of an office having public records shall

be the custodian thereof.

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132-3. Destruction of records regulated.


(a) Prohibition. - No public official may destroy, sell, loan, or

otherwise dispose of any public record, except in accordance with G.S.

121-5, without the consent of the Department of Cultural Resources.

Whoever unlawfully removes a public record from the office where it is

usually kept, or alters, defaces, mutilates or destroys it shall be

guilty of a Class 3 misdemeanor and upon conviction only fined not

less than ten dollars ($10.00) nor more than five hundred dollars

($500.00).


(b) Revenue Records. - Notwithstanding subsection (a) of this section

and G.S. 121-5, when a record of the Department of Revenue has been

copied in any manner, the original record may be destroyed upon the

order of the Secretary of Revenue. If a record of the Department of

Revenue has not been copied, the original record shall be preserved

for at least three years. After three years the original record may be

destroyed upon the order of the Secretary of Revenue.

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132-4. Disposition of records at end of official's term.


Whoever has the custody of any public records shall, at the expiration

of his term of office, deliver to his successor, or, if there be none,

to the Department of Cultural Resources, all records, books, writings,

letters and documents kept or received by him in the transaction of

his official business; and any such person who shall refuse or neglect

for the space of 10 days after request made in writing by any citizen

of the State to deliver as herein required such public records to the

person authorized to receive them shall be guilty of a Class 1

misdemeanor.

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132-5. Demanding custody.


Whoever is entitled to the custody of public records shall demand them

from any person having illegal possession of them, who shall forthwith

deliver the same to him. If the person who unlawfully possesses public

records shall without just cause refuse or neglect for 10 days after a

request made in writing by any citizen of the State to deliver such

records to their lawful custodian, he shall be guilty of a Class 1

misdemeanor.

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132-5.1. Regaining custody; civil remedies.


(a) The Secretary of the Department of Cultural Resources or his

designated representative or any public official who is the custodian

of public records which are in the possession of a person or agency

not authorized by the custodian or by law to possess such public

records may petition the superior court in the county in which the

person holding such records resides or in which the materials in

issue, or any part thereof, are located for the return of such public

records. The court may order such public records to be delivered to

the petitioner upon finding that the materials in issue are public

records and that such public records are in the possession of a person

not authorized by the custodian of the public records or by law to

possess such public records. If the order of delivery does not receive

compliance, the petitioner may request that the court enforce such

order through its contempt power and procedures.


(b) At any time after the filing of the petition set out in subsection

(a) or contemporaneous with such filing, the public official seeking

the return of the public records may by ex parte petition request the

judge or the court in which the action was filed to grant one of the

following provisional remedies:


(1) An order directed at the sheriff commanding him to seize the

materials which are the subject of the action and deliver the

same to the court under the circumstances hereinafter set forth;

or

(2) A preliminary injunction preventing the sale, removal,

disposal or destruction of or damage to such public records

pending a final judgment by the court.


(c) The judge or court aforesaid shall issue an order of seizure or

grant a preliminary injunction upon receipt of an affidavit from the

petitioner which alleges that the materials at issue are public

records and that unless one of said provisional remedies is granted,

there is a danger that such materials shall be sold, secreted, removed

out of the State or otherwise disposed of so as not to be forthcoming

to answer the final judgment of the court respecting the same; or that

such property may be destroyed or materially damaged or injured if not

seized or if injunctive relief is not granted.


(d) The aforementioned order of seizure or preliminary injunction

shall issue without notice to the respondent and without the posting

of any bond or other security by the petitioner.

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132-6. Inspection and examination of records.


(a) 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. As used herein, "custodian" does not mean an agency

that holds the public records of other agencies solely for purposes of

storage or safekeeping or solely to provide data processing.


(b) No person requesting to inspect and examine public records, or to

obtain copies thereof, shall be required to disclose the purpose or

motive for the request.


(c) No request to inspect, examine, or obtain copies of public records

shall be denied on the grounds that confidential information is

commingled with the requested nonconfidential information. If it is

necessary to separate confidential from nonconfidential information in

order to permit the inspection, examination, or copying of the public

records, the public agency shall bear the cost of such separation on

the following schedule:


State agencies after June 30, 1996;


Municipalities with populations of 10,000 or more, counties with

populations of 25,000 or more, as determined by the 1990 U.S. Census,

and public hospitals in those counties, after June 30, 1997;


Municipalities with populations of less than 10,000, counties with

populations of less than 25,000, as determined by the 1990 U.S.

Census, and public hospitals in those counties, after June 30, 1998;


Political subdivisions and their agencies that are not otherwise

covered by this schedule, after June 30, 1998.


(d) Notwithstanding the provisions of subsections (a) and (b) of this

section, public records relating to the proposed expansion or location

of specific business or industrial projects in the State may be

withheld so long as their inspection, examination or copying would

frustrate the purpose for which such public records were created;

provided, however, that nothing herein shall be construed to permit

the withholding of public records relating to general economic

development policies or activities.


(e) The application of this Chapter is subject to the provisions of

Article 1 of Chapter 121 of the General Statutes, the North Carolina

Archives and History Act.


(f) Notwithstanding the provisions of subsection (a) of this section,

the inspection or copying of any public record which, because of its

age or condition could be damaged during inspection or copying, may be

made subject to reasonable restrictions intended to preserve the

particular record.

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132-6.1. Electronic data-processing records.


(a) After June 30, 1996, no public agency shall purchase, lease,

create, or otherwise acquire any electronic data-processing system for

the storage, manipulation, or retrieval of public records unless it

first determines that the system will not impair or impede the

agency's ability to permit the public inspection and examination, and

to provide electronic copies of such records. Nothing in this

subsection shall be construed to require the retention by the public

agency of obsolete hardware or software.


(b) Every public agency shall create an index of computer databases

compiled or created by a public agency on the following schedule:


(1) State agencies by July 1, 1996;

(2) Municipalities with populations of 10,000 or more, counties

with populations of 25,000 or more, as determined by the 1990

U.S. Census, and public hospitals in those counties, by July 1,

1997;

(3) Municipalities with populations of less than 10,000, counties

with populations of less than 25,000, as determined by the 1990

U.S. Census, and public hospitals in those counties, by July 1,

1998;

(4) Political subdivisions and their agencies that are not

otherwise covered by this schedule, after June 30, 1998.


The index shall be a public record and shall include, at a minimum,

the following information with respect to each database listed

therein: a list of the data fields; a description of the format or

record layout; information as to the frequency with which the database

is updated; a list of any data fields to which public access is

restricted; a description of each form in which the database can be

copied or reproduced using the agency's computer facilities; and a

schedule of fees for the production of copies in each available form.

Electronic databases compiled or created prior to the date by which

the index must be created in accordance with this subsection may be

indexed at the public agency's option. The form, content, language,

and guidelines for the index and the databases to be indexed shall be

developed by the Division of Archives and History in consultation with

officials at other public agencies.


(c) Nothing in this section shall require a public agency to create a

computer database that the public agency has not otherwise created or

is not otherwise required to be created. Nothing in this section

requires a public agency to disclose its software security, including

passwords.


(d) The following definitions apply in this section:


(1) Computer database. - A structured collection of data or

documents residing in a database management program or

spreadsheet software.

(2) Computer hardware. - Any tangible machine or device utilized

for the electronic storage, manipulation, or retrieval of data.

(3) Computer program. - A series of instructions or statements

that permit the storage, manipulation, and retrieval of data

within an electronic data-processing system, together with any

associated documentation. The term does not include the original

data, or any analysis, compilation, or manipulated form of the

original data produced by the use of the program or software.

(4) Computer software. - Any set or combination of computer

programs. The term does not include the original data, or any

analysis, compilation, or manipulated form of the original data

produced by the use of the program or software.

(5) Electronic data-processing system. - Computer hardware,

computer software, or computer programs or any combination

thereof, regardless of kind or origin.


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132-6.2. Provisions for copies of public records; fees.


(a) Persons requesting copies of public records may elect to obtain

them in any and all media in which the public agency is capable of

providing them. No request for copies of public records in a

particular medium shall be denied on the grounds that the custodian

has made or prefers to make the public records available in another

medium. The public agency may assess different fees for different

media as prescribed by law.


(b) Persons requesting copies of public records may request that the

copies be certified or uncertified. The fees for certifying copies of

public records shall be as provided by law. Except as otherwise

provided by law, no public agency shall charge a fee for an

uncertified copy of a public record that exceeds the actual cost to

the public agency of making the copy. For purposes of this subsection,

"actual cost" is limited to direct, chargeable costs related to the

reproduction of a public record as determined by generally accepted

accounting principles and does not include costs that would have been

incurred by the public agency if a request to reproduce a public

record had not been made. Notwithstanding the provisions of this

subsection, if 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, or if producing the

record in the medium requested results in a greater use of information

technology resources than that established by the agency for

reproduction of the volume of information requested, then the agency

may charge, in addition to the actual cost of duplication, a special

service charge, which shall be reasonable and shall be based on the

actual cost incurred for such extensive use of information technology

resources or the labor costs of the personnel providing the services,

or for a greater use of information technology resources that is

actually incurred by the agency or attributable to the agency. If

anyone requesting public information from any public agency is charged

a fee that the requester believes to be unfair or unreasonable, the

requester may ask the Information Resource Management Commission to

mediate the dispute.


(c) Persons requesting copies of computer databases may be required to

make or submit such requests in writing. Custodians of public records

shall respond to all such requests as promptly as possible. If the

request is granted, the copies shall be provided as soon as reasonably

possible. If the request is denied, the denial shall be accompanied by

an explanation of the basis for the denial. If asked to do so, the

person denying the request shall, as promptly as possible, reduce the

explanation for the denial to writing.


(d) Nothing in this section shall be construed to require a public

agency to respond to requests for copies of public records outside of

its usual business hours.


(e) Nothing in this section shall be construed to require a public

agency to respond to a request for a copy of a public record by

creating or compiling a record that does not exist. If a public

agency, as a service to the requester, voluntarily elects to create or

compile a record, it may negotiate a reasonable charge for the service

with the requester. Nothing in this section shall be construed to

require a public agency to put into electronic medium a record that is

not kept in electronic medium.

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132-7. Keeping records in safe places; copying or repairing; certified

copies.


Insofar as possible, custodians of public records shall keep them in

fireproof safes, vaults, or rooms fitted with noncombustible materials

and in such arrangement as to be easily accessible for convenient use.

All public records should be kept in the buildings in which they are

ordinarily used. Record books should be copied or repaired, renovated

or rebound if worn, mutilated, damaged or difficult to read. Whenever

any State, county, or municipal records are in need of repair,

restoration, or rebinding, the head of such State agency, department,

board, or commission, the board of county commissioners of such

county, or the governing body of such municipality may authorize that

the records in need of repair, restoration, or rebinding be removed

from the building or office in which such records are ordinarily kept,

for the length of time required to repair, restore, or rebind them.

Any public official who causes a record book to be copied shall attest

it and shall certify on oath that it is an accurate copy of the

original book. The copy shall then have the force of the original.

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132-8. Assistance by and to Department of Cultural Resources.


The Department of Cultural Resources shall have the right to examine

into the condition of public records and shall give advice and

assistance to public officials in the solution of their problems of

preserving, filing and making available the public records in their

custody. When requested by the Department of Cultural Resources,

public officials shall assist the Department in the preparation of an

inclusive inventory of records in their custody, to which shall be

attached a schedule, approved by the head of the governmental unit or

agency having custody of the records and the Secretary of Cultural

Resources, establishing a time period for the retention or disposal of

each series of records. Upon the completion of the inventory and

schedule, the Department of Cultural Resources shall (subject to the

availability of necessary space, staff, and other facilities for such

purposes) make available space in its Records Center for the filing of

semicurrent records so scheduled and in its archives for noncurrent

records of permanent value, and shall render such other assistance as

needed, including the microfilming of records so scheduled.

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132-8.1. Records management program administered by Department of

Cultural Resources; establishment of standards, procedures, etc.; surveys.


A records management program for the application of efficient and

economical management methods to the creation, utilization,

maintenance, retention, preservation, and disposal of official records

shall be administered by the Department of Cultural Resources. It

shall be the duty of that Department, in cooperation with and with the

approval of the Department of Administration, to establish standards,

procedures, and techniques for effective management of public records,

to make continuing surveys of paper work operations, and to recommend

improvements in current records management practices including the use

of space, equipment, and supplies employed in creating, maintaining,

and servicing records. It shall be the duty of the head of each State

agency and the governing body of each county, municipality and other

subdivision of government to cooperate with the Department of Cultural

Resources in conducting surveys and to establish and maintain an

active, continuing program for the economical and efficient management

of the records of said agency, county, municipality, or other

subdivision of government.

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132-8.2. Selection and preservation of records considered essential;

making or designation of preservation duplicates; force and effect of

duplicates or copies thereof.


In cooperation with the head of each State agency and the governing

body of each county, municipality, and other subdivision of

government, the Department of Cultural Resources shall establish and

maintain a program for the selection and preservation of public

records considered essential to the operation of government and to the

protection of the rights and interests of persons, and, within the

limitations of funds available for the purpose, shall make or cause to

be made preservation duplicates or designate as preservation

duplicates existing copies of such essential public records.

Preservation duplicates shall be durable, accurate, complete and

clear, and such duplicates made by a photographic, photostatic,

microfilm, micro card, miniature photographic, or other process which

accurately reproduces and forms a durable medium for so reproducing

the original shall have the same force and effect for all purposes as

the original record whether the original record is in existence or

not. A transcript, exemplification, or certified copy of such

preservation duplicate shall be deemed for all purposes to be a

transcript, exemplification, or certified copy of the original record.

Such preservation duplicates shall be preserved in the place and

manner of safekeeping prescribed by the Department of Cultural

Resources.

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132-9. Access to records.


(a) Any person who is denied access to public records for purposes of

inspection and examination, or who is denied copies of public records,

may apply to the appropriate division of the General Court of Justice

for an order compelling disclosure or copying, and the court shall

have jurisdiction to issue such orders. Actions brought pursuant to

this section shall be set down for immediate hearing, and subsequent

proceedings in such actions shall be accorded priority by the trial

and appellate courts.


(b) In an action to compel disclosure of public records which have

been withheld pursuant to the provisions of G.S. 132-6 concerning

public records relating to the proposed expansion or location of

particular businesses and industrial projects, the burden shall be on

the custodian withholding the records to show that disclosure would

frustrate the purpose of attracting that particular business or

industrial project.


(c) In any action brought pursuant to this section in which a party

successfully compels the disclosure of public records, the court may,

in its discretion, allow the prevailing party to recover reasonable

attorneys' fees if:


(1) The court finds that the agency acted without substantial

justification in denying access to the public records; and

(2) The court finds that there are no special circumstances that

would make the award of attorneys' fees unjust. Any attorneys'

fees assessed against a public agency under this section shall be

charged against the operating expenses of the agency; provided,

however, that the court may order that all or any portion of any

attorneys' fees so assessed be paid personally by any public

employee or public official found by the court to have knowingly

or intentionally committed, caused, permitted, suborned, or

participated in a violation of this Article. No order against any

public employee or public official shall issue in any case where

the public employee or public official seeks the advice of any

attorney and such advice is followed.


(d) If the court determines that an action brought pursuant to this

section was filed in bad faith or was frivolous, the court may, in its

discretion, assess a reasonable attorney's fee against the person or

persons instituting the action and award it to the public agency as

part of the costs.

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132-10. Qualified exception for geographical information systems.


Geographical information systems databases and data files developed

and operated by counties and cities are public records within the

meaning of this Chapter. The county or city shall provide public

access to such systems by public access terminals or other output

devices. Upon request, the county or city shall furnish copies, in

documentary or electronic form, to anyone requesting them at

reasonable cost. As a condition of furnishing an electronic copy,

whether on magnetic tape, magnetic disk, compact disk, or

photo-optical device, a county or city may require that the person

obtaining the copy agree in writing that the copy will not be resold

or otherwise used for trade or commercial purposes. For purposes of

this section, publication or broadcast by the news media shall not

constitute a resale or use of the data for trade or commercial

purposes and use of information without resale by a licensed

professional in the course of practicing the professional's profession

shall not constitute use for a commercial purpose.


North Carolina

State Public Records Law

North Carolina General Statutes

Chapter 132.

Public Records.

Last amended July 10, 1995

Effective October 1, 1995


Contents

Section Title


132-1.

"Public records" defined.

132-1.1.

Confidential communications by legal counsel to public board or

agency; State tax information.

132-1.2.

Confidential information.

132-1.3.

Settlements made by or on behalf of public agencies, public officials,

or public employees; public records.

132-1.4.

Criminal investigations; intelligence information records.

132-2.

Custodian designated.

132-3.

Destruction of records regulated.

132-4.

Disposition of records at end of official's term.

132-5.

Demanding custody.

132-5.1.

Regaining custody; civil remedies.

132-6.

Inspection and examination of records.

132-6.1.

Electronic data-processing records.

132-6.2.

Provisions for copies of public records; fees.

132-7.

Keeping records in safe places; copying or repairing; certified

copies.

132-8.

Assistance by and to Department of Cultural Resources.

132-8.1.

Records management program administered by Department of Cultural

Resources; establishment of standards, procedures, etc.; surveys.

132-8.2.

Selection and preservation of records considered essential; making or

designation of preservation duplicates; force and effect of duplicates

or copies thereof.

132-9.

Access to records.

132-10.

Qualified exception for geographical information systems.


132-1. "Public records" defined.


(a) "Public record" or "public records" shall mean all 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, made or received pursuant to law or ordinance in

connection with the transaction of public business by any agency of

North Carolina government or its subdivisions. Agency of North

Carolina government or its subdivisions shall mean and include 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.


(b) The public records and public information compiled by the agencies

of North Carolina government or its subdivisions are the property of

the people. Therefore, it is the policy of this State that the people

may obtain copies of their public records and public information free

or at minimal cost unless otherwise specifically provided by law. As

used herein, "minimal cost" shall mean the actual cost of reproducing

the public record or public information.

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132-1.1. Confidential communications by legal counsel to public board or

agency; State tax information.


(a) Confidential Communications. - Public records, as defined in G.S.

132-1, shall not include written communications (and copies thereof)

to any public board, council, commission or other governmental body of

the State or of any county, municipality or other political

subdivision or unit of government, made within the scope of the

attorney-client relationship by any attorney-at-law serving any such

governmental body, concerning any claim against or on behalf of the

governmental body or the governmental entity for which such body acts,

or concerning the prosecution, defense, settlement or litigation of

any judicial action, or any administrative or other type of proceeding

to which the governmental body is a party or by which it is or may be

directly affected. Such written communication and copies thereof shall

not be open to public inspection, examination or copying unless

specifically made public by the governmental body receiving such

written communications; provided, however, that such written

communications and copies thereof shall become public records as

defined in G.S. 132-1 three years from the date such communication was

received by such public board, council, commission or other

governmental body.


(b) State Tax Information. - Tax information may not be disclosed

except as provided in G.S. 105-259, 153A-148.1, and 160A-208.1. As

used in this subsection, "tax information" has the same meaning as in

G.S. 105-259.

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132-1.2. Confidential information.


Nothing in this Article shall be construed to require or authorize a

public agency to disclose any information which:


(1) Constitutes a "trade secret" as defined in G.S. 66-152(3);

(2) Is the property of a private "person" as defined in G.S.

66-152(2);

(3) Is disclosed or furnished to the public agency in connection

with the owner's performance of a public contract or in

connection with a bid, application, proposal, industrial

development project, or in compliance with laws, regulations,

rules, or ordinances of the United States, the State, or

political subdivisions of the State; and

(4) Is designated or indicated as "confidential" or as a "trade

secret" at the time of its initial disclosure to the public

agency.

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132-1.3. Settlements made by or on behalf of public agencies, public

officials, or public employees; public records.


(a) Public records, as defined in G.S. 132-1, shall include all

settlement documents in any suit, administrative proceeding or

arbitration instituted against any agency of North Carolina government

or its subdivisions, as defined in G.S. 132-1, in connection with or

arising out of such agency's official actions, duties or

responsibilities, except in an action for medical malpractice against

a hospital facility. No agency of North Carolina government or its

subdivisions, nor any counsel, insurance company or other

representative acting on behalf of such agency, shall approve, accept

or enter into any settlement of any such suit, arbitration or

proceeding if the settlement provides that its terms and conditions

shall be confidential, except in an action for medical malpractice

against a hospital facility. No settlement document sealed under

subsection (b) of this section shall be open for public inspection.


(b) No judge, administrative judge or administrative hearing officer

of this State, nor any board or commission, nor any arbitrator

appointed pursuant to the laws of North Carolina, shall order or

permit the sealing of any settlement document in any proceeding

described herein except on the basis of a written order concluding

that (1) the presumption of openness is overcome by an overriding

interest and (2) that such overriding interest cannot be protected by

any measure short of sealing the settlement. Such order shall

articulate the overriding interest and shall include findings of fact

that are sufficiently specific to permit a reviewing court to

determine whether the order was proper.


(c) Except for confidential communications as provided in G.S.

132-1.1, the term "settlement documents," as used herein, shall

include all documents which reflect, or which are made or utilized in

connection with, the terms and conditions upon which any proceedings

described in this section are compromised, settled, terminated or

dismissed, including but not limited to correspondence, settlement

agreements, consent orders, checks, and bank drafts.

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132-1.4. Criminal investigations; intelligence information records.


(a) Records of criminal investigations conducted by public law

enforcement agencies or records of criminal intelligence information

compiled by public law enforcement agencies are not public records as

defined by G.S. 132-1. Records of criminal investigations conducted by

public law enforcement agencies or records of criminal intelligence

information may be released by order of a court of competent

jurisdiction.


(b) As used in this section:


(1) "Records of criminal investigations" means all records or any

information that pertains to a person or group of persons that is

compiled by public law enforcement agencies for the purpose of

attempting to prevent or solve violations of the law, including

information derived from witnesses, laboratory tests,

surveillance, investigators, confidential informants,

photographs, and measurements.

(2) "Records of criminal intelligence information" means records

or information that pertain to a person or group of persons that

is compiled by a public law enforcement agency in an effort to

anticipate, prevent, or monitor possible violations of the law.

(3) "Public law enforcement agency" means a municipal police

department, a county police department, a sheriff's department, a

company police agency commissioned by the Attorney General

pursuant to G.S. 74E-1, et seq., and any State or local agency,

force, department, or unit responsible for investigating,

preventing, or solving violations of the law.

(4) "Violations of the law" means crimes and offenses that are

prosecutable in the criminal courts in this State or the United

States and infractions as defined in G.S. 14-3.1.

(5) "Complaining witness" means an alleged victim or other person

who reports a violation or apparent violation of the law to a

public law enforcement agency.


(c) Notwithstanding the provisions of this section, and unless

otherwise prohibited by law, the following information shall be public

records within the meaning of G.S. 132-1.


(1) The time, date, location, and nature of a violation or

apparent violation of the law reported to a public law

enforcement agency.

(2) The name, sex, age, address, employment, and alleged

violation of law of a person arrested, charged, or indicted.

(3) The circumstances surrounding an arrest, including the time

and place of the arrest, whether the arrest involved resistance,

possession or use of weapons, or pursuit, and a description of

any items seized in connection with the arrest.

(4) The contents of "911" and other emergency telephone calls

received by or on behalf of public law enforcement agencies,

except for such contents that reveal the name, address, telephone

number, or other information that may identify the caller,

victim, or witness.

(5) The contents of communications between or among employees of

public law enforcement agencies that are broadcast over the

public airways.

(6) The name, sex, age, and address of a complaining witness.


(d) A public law enforcement agency shall temporarily withhold the

name or address of a complaining witness if release of the information

is reasonably likely to pose a threat to the mental health, physical

health, or personal safety of the complaining witness or materially

compromise a continuing or future criminal investigation or criminal

intelligence operation. Information temporarily withheld under this

subsection shall be made available for release to the public in

accordance with G.S. 132-6 as soon as the circumstances that justify

withholding it cease to exist. Any person denied access to information

withheld under this subsection may apply to a court of competent

jurisdiction for an order compelling disclosure of the information. In

such action, the court shall balance the interests of the public in

disclosure against the interests of the law enforcement agency and the

alleged victim in withholding the information. Actions brought

pursuant to this subsection shall be set down for immediate hearing,

and subsequent proceedings in such actions shall be accorded priority

by the trial and appellate courts.


(e) If a public law enforcement agency believes that release of

information that is a public record under subdivisions (c)(1) through

(c)(5) of this section will jeopardize the right of the State to

prosecute a defendant or the right of a defendant to receive a fair

trial or will undermine an ongoing or future investigation, it may

seek an order from a court of competent jurisdiction to prevent

disclosure of the information. In such action the law enforcement

agency shall have the burden of showing by a preponderance of the

evidence that disclosure of the information in question will

jeopardize the right of the State to prosecute a defendant or the

right of a defendant to receive a fair trial or will undermine an

ongoing or future investigation. Actions brought pursuant to this

subsection shall be set down for immediate hearing, and subsequent

proceedings in such actions shall be accorded priority by the trial

and appellate courts.


(f) Nothing in this section shall be construed as authorizing any

public law enforcement agency to prohibit or prevent another public

agency having custody of a public record from permitting the

inspection, examination, or copying of such public record in

compliance with G.S. 132-6. The use of a public record in connection

with a criminal investigation or the gathering of criminal

intelligence shall not affect its status as a public record.


(g) Disclosure of records of criminal investigations and criminal

intelligence information that have been transmitted to a district

attorney or other attorney authorized to prosecute a violation of law

shall be governed by this section and Chapter 15A of the General

Statutes.


(h) Nothing in this section shall be construed as requiring law

enforcement agencies to disclose the following:


(1) Information that would not be required to be disclosed under

Chapter 15A of the General Statutes; or

(2) Information that is reasonably likely to identify a

confidential informant.


(i) Law enforcement agencies shall not be required to maintain any

tape recordings of "911" or other communications for more than 30 days

from the time of the call, unless a court of competent jurisdiction

orders a portion sealed.


(j) When information that is not a public record under the provisions

of this section is deleted from a document, tape recording, or other

record, the law enforcement agency shall make clear that a deletion

has been made. Nothing in this subsection shall authorize the

destruction of the original record.


(k) The following court records are public records and may be withheld

only when sealed by court order: arrest and search warrants that have

been returned by law enforcement agencies, indictments, criminal

summons, and nontestimonial identification orders.


(l) Records of investigations of alleged child abuse shall be governed

by G.S. 7A-675.

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132-2. Custodian designated.


The public official in charge of an office having public records shall

be the custodian thereof.

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132-3. Destruction of records regulated.


(a) Prohibition. - No public official may destroy, sell, loan, or

otherwise dispose of any public record, except in accordance with G.S.

121-5, without the consent of the Department of Cultural Resources.

Whoever unlawfully removes a public record from the office where it is

usually kept, or alters, defaces, mutilates or destroys it shall be

guilty of a Class 3 misdemeanor and upon conviction only fined not

less than ten dollars ($10.00) nor more than five hundred dollars

($500.00).


(b) Revenue Records. - Notwithstanding subsection (a) of this section

and G.S. 121-5, when a record of the Department of Revenue has been

copied in any manner, the original record may be destroyed upon the

order of the Secretary of Revenue. If a record of the Department of

Revenue has not been copied, the original record shall be preserved

for at least three years. After three years the original record may be

destroyed upon the order of the Secretary of Revenue.

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132-4. Disposition of records at end of official's term.


Whoever has the custody of any public records shall, at the expiration

of his term of office, deliver to his successor, or, if there be none,

to the Department of Cultural Resources, all records, books, writings,

letters and documents kept or received by him in the transaction of

his official business; and any such person who shall refuse or neglect

for the space of 10 days after request made in writing by any citizen

of the State to deliver as herein required such public records to the

person authorized to receive them shall be guilty of a Class 1

misdemeanor.

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132-5. Demanding custody.


Whoever is entitled to the custody of public records shall demand them

from any person having illegal possession of them, who shall forthwith

deliver the same to him. If the person who unlawfully possesses public

records shall without just cause refuse or neglect for 10 days after a

request made in writing by any citizen of the State to deliver such

records to their lawful custodian, he shall be guilty of a Class 1

misdemeanor.

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132-5.1. Regaining custody; civil remedies.


(a) The Secretary of the Department of Cultural Resources or his

designated representative or any public official who is the custodian

of public records which are in the possession of a person or agency

not authorized by the custodian or by law to possess such public

records may petition the superior court in the county in which the

person holding such records resides or in which the materials in

issue, or any part thereof, are located for the return of such public

records. The court may order such public records to be delivered to

the petitioner upon finding that the materials in issue are public

records and that such public records are in the possession of a person

not authorized by the custodian of the public records or by law to

possess such public records. If the order of delivery does not receive

compliance, the petitioner may request that the court enforce such

order through its contempt power and procedures.


(b) At any time after the filing of the petition set out in subsection

(a) or contemporaneous with such filing, the public official seeking

the return of the public records may by ex parte petition request the

judge or the court in which the action was filed to grant one of the

following provisional remedies:


(1) An order directed at the sheriff commanding him to seize the

materials which are the subject of the action and deliver the

same to the court under the circumstances hereinafter set forth;

or

(2) A preliminary injunction preventing the sale, removal,

disposal or destruction of or damage to such public records

pending a final judgment by the court.


(c) The judge or court aforesaid shall issue an order of seizure or

grant a preliminary injunction upon receipt of an affidavit from the

petitioner which alleges that the materials at issue are public

records and that unless one of said provisional remedies is granted,

there is a danger that such materials shall be sold, secreted, removed

out of the State or otherwise disposed of so as not to be forthcoming

to answer the final judgment of the court respecting the same; or that

such property may be destroyed or materially damaged or injured if not

seized or if injunctive relief is not granted.


(d) The aforementioned order of seizure or preliminary injunction

shall issue without notice to the respondent and without the posting

of any bond or other security by the petitioner.

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132-6. Inspection and examination of records.


(a) 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. As used herein, "custodian" does not mean an agency

that holds the public records of other agencies solely for purposes of

storage or safekeeping or solely to provide data processing.


(b) No person requesting to inspect and examine public records, or to

obtain copies thereof, shall be required to disclose the purpose or

motive for the request.


(c) No request to inspect, examine, or obtain copies of public records

shall be denied on the grounds that confidential information is

commingled with the requested nonconfidential information. If it is

necessary to separate confidential from nonconfidential information in

order to permit the inspection, examination, or copying of the public

records, the public agency shall bear the cost of such separation on

the following schedule:


State agencies after June 30, 1996;


Municipalities with populations of 10,000 or more, counties with

populations of 25,000 or more, as determined by the 1990 U.S. Census,

and public hospitals in those counties, after June 30, 1997;


Municipalities with populations of less than 10,000, counties with

populations of less than 25,000, as determined by the 1990 U.S.

Census, and public hospitals in those counties, after June 30, 1998;


Political subdivisions and their agencies that are not otherwise

covered by this schedule, after June 30, 1998.


(d) Notwithstanding the provisions of subsections (a) and (b) of this

section, public records relating to the proposed expansion or location

of specific business or industrial projects in the State may be

withheld so long as their inspection, examination or copying would

frustrate the purpose for which such public records were created;

provided, however, that nothing herein shall be construed to permit

the withholding of public records relating to general economic

development policies or activities.


(e) The application of this Chapter is subject to the provisions of

Article 1 of Chapter 121 of the General Statutes, the North Carolina

Archives and History Act.


(f) Notwithstanding the provisions of subsection (a) of this section,

the inspection or copying of any public record which, because of its

age or condition could be damaged during inspection or copying, may be

made subject to reasonable restrictions intended to preserve the

particular record.

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132-6.1. Electronic data-processing records.


(a) After June 30, 1996, no public agency shall purchase, lease,

create, or otherwise acquire any electronic data-processing system for

the storage, manipulation, or retrieval of public records unless it

first determines that the system will not impair or impede the

agency's ability to permit the public inspection and examination, and

to provide electronic copies of such records. Nothing in this

subsection shall be construed to require the retention by the public

agency of obsolete hardware or software.


(b) Every public agency shall create an index of computer databases

compiled or created by a public agency on the following schedule:


(1) State agencies by July 1, 1996;

(2) Municipalities with populations of 10,000 or more, counties

with populations of 25,000 or more, as determined by the 1990

U.S. Census, and public hospitals in those counties, by July 1,

1997;

(3) Municipalities with populations of less than 10,000, counties

with populations of less than 25,000, as determined by the 1990

U.S. Census, and public hospitals in those counties, by July 1,

1998;

(4) Political subdivisions and their agencies that are not

otherwise covered by this schedule, after June 30, 1998.


The index shall be a public record and shall include, at a minimum,

the following information with respect to each database listed

therein: a list of the data fields; a description of the format or

record layout; information as to the frequency with which the database

is updated; a list of any data fields to which public access is

restricted; a description of each form in which the database can be

copied or reproduced using the agency's computer facilities; and a

schedule of fees for the production of copies in each available form.

Electronic databases compiled or created prior to the date by which

the index must be created in accordance with this subsection may be

indexed at the public agency's option. The form, content, language,

and guidelines for the index and the databases to be indexed shall be

developed by the Division of Archives and History in consultation with

officials at other public agencies.


(c) Nothing in this section shall require a public agency to create a

computer database that the public agency has not otherwise created or

is not otherwise required to be created. Nothing in this section

requires a public agency to disclose its software security, including

passwords.


(d) The following definitions apply in this section:


(1) Computer database. - A structured collection of data or

documents residing in a database management program or

spreadsheet software.

(2) Computer hardware. - Any tangible machine or device utilized

for the electronic storage, manipulation, or retrieval of data.

(3) Computer program. - A series of instructions or statements

that permit the storage, manipulation, and retrieval of data

within an electronic data-processing system, together with any

associated documentation. The term does not include the original

data, or any analysis, compilation, or manipulated form of the

original data produced by the use of the program or software.

(4) Computer software. - Any set or combination of computer

programs. The term does not include the original data, or any

analysis, compilation, or manipulated form of the original data

produced by the use of the program or software.

(5) Electronic data-processing system. - Computer hardware,

computer software, or computer programs or any combination

thereof, regardless of kind or origin.

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132-6.2. Provisions for copies of public records; fees.


(a) Persons requesting copies of public records may elect to obtain

them in any and all media in which the public agency is capable of

providing them. No request for copies of public records in a

particular medium shall be denied on the grounds that the custodian

has made or prefers to make the public records available in another

medium. The public agency may assess different fees for different

media as prescribed by law.


(b) Persons requesting copies of public records may request that the

copies be certified or uncertified. The fees for certifying copies of

public records shall be as provided by law. Except as otherwise

provided by law, no public agency shall charge a fee for an

uncertified copy of a public record that exceeds the actual cost to

the public agency of making the copy. For purposes of this subsection,

"actual cost" is limited to direct, chargeable costs related to the

reproduction of a public record as determined by generally accepted

accounting principles and does not include costs that would have been

incurred by the public agency if a request to reproduce a public

record had not been made. Notwithstanding the provisions of this

subsection, if 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, or if producing the

record in the medium requested results in a greater use of information

technology resources than that established by the agency for

reproduction of the volume of information requested, then the agency

may charge, in addition to the actual cost of duplication, a special

service charge, which shall be reasonable and shall be based on the

actual cost incurred for such extensive use of information technology

resources or the labor costs of the personnel providing the services,

or for a greater use of information technology resources that is

actually incurred by the agency or attributable to the agency. If

anyone requesting public information from any public agency is charged

a fee that the requester believes to be unfair or unreasonable, the

requester may ask the Information Resource Management Commission to

mediate the dispute.


(c) Persons requesting copies of computer databases may be required to

make or submit such requests in writing. Custodians of public records

shall respond to all such requests as promptly as possible. If the

request is granted, the copies shall be provided as soon as reasonably

possible. If the request is denied, the denial shall be accompanied by

an explanation of the basis for the denial. If asked to do so, the

person denying the request shall, as promptly as possible, reduce the

explanation for the denial to writing.


(d) Nothing in this section shall be construed to require a public

agency to respond to requests for copies of public records outside of

its usual business hours.


(e) Nothing in this section shall be construed to require a public

agency to respond to a request for a copy of a public record by

creating or compiling a record that does not exist. If a public

agency, as a service to the requester, voluntarily elects to create or

compile a record, it may negotiate a reasonable charge for the service

with the requester. Nothing in this section shall be construed to

require a public agency to put into electronic medium a record that is

not kept in electronic medium.

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132-7. Keeping records in safe places; copying or repairing; certified

copies.


Insofar as possible, custodians of public records shall keep them in

fireproof safes, vaults, or rooms fitted with noncombustible materials

and in such arrangement as to be easily accessible for convenient use.

All public records should be kept in the buildings in which they are

ordinarily used. Record books should be copied or repaired, renovated

or rebound if worn, mutilated, damaged or difficult to read. Whenever

any State, county, or municipal records are in need of repair,

restoration, or rebinding, the head of such State agency, department,

board, or commission, the board of county commissioners of such

county, or the governing body of such municipality may authorize that

the records in need of repair, restoration, or rebinding be removed

from the building or office in which such records are ordinarily kept,

for the length of time required to repair, restore, or rebind them.

Any public official who causes a record book to be copied shall attest

it and shall certify on oath that it is an accurate copy of the

original book. The copy shall then have the force of the original.

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132-8. Assistance by and to Department of Cultural Resources.


The Department of Cultural Resources shall have the right to examine

into the condition of public records and shall give advice and

assistance to public officials in the solution of their problems of

preserving, filing and making available the public records in their

custody. When requested by the Department of Cultural Resources,

public officials shall assist the Department in the preparation of an

inclusive inventory of records in their custody, to which shall be

attached a schedule, approved by the head of the governmental unit or

agency having custody of the records and the Secretary of Cultural

Resources, establishing a time period for the retention or disposal of

each series of records. Upon the completion of the inventory and

schedule, the Department of Cultural Resources shall (subject to the

availability of necessary space, staff, and other facilities for such

purposes) make available space in its Records Center for the filing of

semicurrent records so scheduled and in its archives for noncurrent

records of permanent value, and shall render such other assistance as

needed, including the microfilming of records so scheduled.

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132-8.1. Records management program administered by Department of

Cultural Resources; establishment of standards, procedures, etc.; surveys.


A records management program for the application of efficient and

economical management methods to the creation, utilization,

maintenance, retention, preservation, and disposal of official records

shall be administered by the Department of Cultural Resources. It

shall be the duty of that Department, in cooperation with and with the

approval of the Department of Administration, to establish standards,

procedures, and techniques for effective management of public records,

to make continuing surveys of paper work operations, and to recommend

improvements in current records management practices including the use

of space, equipment, and supplies employed in creating, maintaining,

and servicing records. It shall be the duty of the head of each State

agency and the governing body of each county, municipality and other

subdivision of government to cooperate with the Department of Cultural

Resources in conducting surveys and to establish and maintain an

active, continuing program for the economical and efficient management

of the records of said agency, county, municipality, or other

subdivision of government.

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132-8.2. Selection and preservation of records considered essential;

making or designation of preservation duplicates; force and effect of

duplicates or copies thereof.


In cooperation with the head of each State agency and the governing

body of each county, municipality, and other subdivision of

government, the Department of Cultural Resources shall establish and

maintain a program for the selection and preservation of public

records considered essential to the operation of government and to the

protection of the rights and interests of persons, and, within the

limitations of funds available for the purpose, shall make or cause to

be made preservation duplicates or designate as preservation

duplicates existing copies of such essential public records.

Preservation duplicates shall be durable, accurate, complete and

clear, and such duplicates made by a photographic, photostatic,

microfilm, micro card, miniature photographic, or other process which

accurately reproduces and forms a durable medium for so reproducing

the original shall have the same force and effect for all purposes as

the original record whether the original record is in existence or

not. A transcript, exemplification, or certified copy of such

preservation duplicate shall be deemed for all purposes to be a

transcript, exemplification, or certified copy of the original record.

Such preservation duplicates shall be preserved in the place and

manner of safekeeping prescribed by the Department of Cultural

Resources.

---------------------------------------------------------------------------

132-9. Access to records.


(a) Any person who is denied access to public records for purposes of

inspection and examination, or who is denied copies of public records,

may apply to the appropriate division of the General Court of Justice

for an order compelling disclosure or copying, and the court shall

have jurisdiction to issue such orders. Actions brought pursuant to

this section shall be set down for immediate hearing, and subsequent

proceedings in such actions shall be accorded priority by the trial

and appellate courts.


(b) In an action to compel disclosure of public records which have

been withheld pursuant to the provisions of G.S. 132-6 concerning

public records relating to the proposed expansion or location of

particular businesses and industrial projects, the burden shall be on

the custodian withholding the records to show that disclosure would

frustrate the purpose of attracting that particular business or

industrial project.


(c) In any action brought pursuant to this section in which a party

successfully compels the disclosure of public records, the court may,

in its discretion, allow the prevailing party to recover reasonable

attorneys' fees if:


(1) The court finds that the agency acted without substantial

justification in denying access to the public records; and

(2) The court finds that there are no special circumstances that

would make the award of attorneys' fees unjust. Any attorneys'

fees assessed against a public agency under this section shall be

charged against the operating expenses of the agency; provided,

however, that the court may order that all or any portion of any

attorneys' fees so assessed be paid personally by any public

employee or public official found by the court to have knowingly

or intentionally committed, caused, permitted, suborned, or

participated in a violation of this Article. No order against any

public employee or public official shall issue in any case where

the public employee or public official seeks the advice of any

attorney and such advice is followed.


(d) If the court determines that an action brought pursuant to this

section was filed in bad faith or was frivolous, the court may, in its

discretion, assess a reasonable attorney's fee against the person or

persons instituting the action and award it to the public agency as

part of the costs.

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132-10. Qualified exception for geographical information systems.


Geographical information systems databases and data files developed

and operated by counties and cities are public records within the

meaning of this Chapter. The county or city shall provide public

access to such systems by public access terminals or other output

devices. Upon request, the county or city shall furnish copies, in

documentary or electronic form, to anyone requesting them at

reasonable cost. As a condition of furnishing an electronic copy,

whether on magnetic tape, magnetic disk, compact disk, or

photo-optical device, a county or city may require that the person

obtaining the copy agree in writing that the copy will not be resold

or otherwise used for trade or commercial purposes. For purposes of

this section, publication or broadcast by the news media shall not

constitute a resale or use of the data for trade or commercial

purposes and use of information without resale by a licensed

professional in the course of practicing the professional's profession

shall not constitute use for a commercial purpose.



North Carolina

Guidelines for Managing Public Records

Produced by Information Technology Systems

Published by

North Carolina Department of Cultural Resources

Division of Archives & History

July 1995


Contents

Introduction ii

I. Applicability of Suggested Guidelines and Self-Warranty 1

II. Definitions 1

A. Information Technology System 1

B. Process or System 1

C. Record 1

D. Public Record 1

E. Electronic Record 1

F. Original Record 1

G. Duplicate Record 2

III. Use of Records Prepared by Information Technology Systems in Legal Proceedings

A. Rules of Evidence 2

B. Laying a Proper Foundation 2

C. Life Expectancy of Media and Admissibility of Records 3

D. Admissibility of Records Transferred or Converted to Another Medium 3


IV. Records Quality Criteria 3

V. Characteristics of the Process or System Used to Prepare Records 3

A. Records Produced As Part of a Regularly Conducted Activity 4

B. Accuracy 4

C. Timeliness 4

VI. Components of the Process or System Used to Prepare Records 4

A. Procedures 4

B. Training Programs 5

C. Audit Trails 5

D. Audits 5

VII. Documentation 6

A. Content 6

B. Retention 6

VIII. Availability of Process or System for Outside Inspection 7

IX. Legal Status of Records Offered as Evidence 7

Appendix A: Excerpts of Relevant North Carolina General Statutes 8

Appendix B: Electronic Records Production Control Self-Warranty 12

Introduction

A critical need by government agencies for more efficient methods for the creation, storage, and retrieval of public records has led to the adoption of varied information technology systems for managing records. These include optical disk and CD ROM systems as well as more established media such as microform and magnetic disk and tape. While the advantages of such systems are many, the complexity of safeguarding the integrity of records has increased, requiring greater attention to issues relating to security, accuracy, reliability, and accountability.

This publication provides North Carolina state, county, and municipal agencies, and other subdivisions of government suggested guidelines for establishing methods and procedures in the preparation of records produced by information technology systems. Implementation of the guidelines should increase the reliability and accuracy of records regardless of the type of storage media employed, thereby enhancing their admissibility and acceptance by the courts as being trustworthy. Admissibility of printouts of optical disk or CD ROM files is yet to be widely tested, but it is expected that they will be treated similarly to printouts from magnetic disk or tape files, i.e., accepted as originals if it is shown that they reflect the data accurately. Appendix A contains excerpts of relevant North Carolina statutes, and Appendix B describes an electronic records production self-warranty process and includes a model warranty form.

The suggested guidelines and self-warranty are expected to serve as a basis for establishing State standards in the future. While not now required, it is suggested that agencies employing an information technology system consider their implementation. The model form in Appendix B may be reproduced by agencies choosing to begin warranting the production of electronic records.

Nothing in this publication or the appendixes changes current records retention and

disposition scheduling procedures nor authorizes the destruction of records, originals or

copies.

Agencies may obtain a copy of this publication from the State at no charge.

North Carolina Department of Cultural Resources Tel: 919/733-7305

Division of Archives and History Fax: 919/733-8807

109 East Jones Street

Raleigh, NC 27601-2807

The North Carolina guidelines are based on those contained in the Association for Information and Image Management (AIIM) technical report series, Performance Guidelines for the Legal Acceptance of Records Produced by Information Technology Systems (AIIM Catalog No. TR31). The technical reports may be purchased from AIIM.

Association for Information and Image Management Tel: 301/587-8202

1100 Wayne Avenue, Suite 1100 Fax: 301/587-2711

Silver Spring, MD 20910

The statutes reprinted or quoted verbatim in the following pages are taken from the General Statutes of North Carolina, Copyright 1994, by the Michie Company, a division of Reed Elsevier Inc. and Reed Elsevier Properties Inc. and are reprinted with the permission of The Michie Company. All rights reserved.


I. Applicability of Suggested Guidelines and Self-Warranty

These suggested guidelines are designed to be applicable to public records produced by any information technology system, as the term is defined below, regardless of the physical characteristics of the record media or technology employed. The suggested self-warranty certification (Appendix B) is designed for officials with responsibility for electronic records. Electronic record also is defined below.

II. Definitions


A. Information Technology System: Any process or system that employs a mechanical, photo-optical, magnetic, electronic, or other technological device for producing or reproducing records.

B. Process or System: Any information technology system.

C. Record: Information preserved by any technique in any medium, now known or later developed, that can be recognized by ordinary human sensory capabilities either directly or with the aid of technology.

D. Public Record: Chapter 132, section 132-1, of the North Carolina General Statutes defines public records as meaning ". . .all 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, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions. Agency of North Carolina government or its subdivisions shall mean and include 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." (See Appendix A for excerpts of other relevant North Carolina statutes.)

E. Electronic Record: A record created or reproduced in any medium by means of any system requiring the aid of electronic technology to make the record readable or otherwise comprehensible by ordinary human sensory capabilities. (This definition does not apply to microform records, which can be read with the aid of a magnifying glass.)

F. Original Record: A record prepared in the first instance or any counterpart intended to have the same effect by a person executing or issuing it. If data are stored in a computer or similar device, any printout or other output readable by sight shown to reflect the data accurately is an "original."

Original records preserve information over time in the identical or functionally equivalent form to the original information. Original records may present information in a form different from the original information without affecting its quality. For example, information preserved in digital format may be printed on paper using different print fonts at different times.

G. Duplicate Record: A record that is produced by the same impression as the original, or from the same matrix, or by any other technique that accurately reproduces the original.

Duplicate records accurately reproduce original records, except that duplicates may contain production, control, indexing, certification, or other data not related to informational content of the records and which do not affect the content of the records.

Image enhancement techniques may be used provided that they do not change the information content of the records.

Note: Classifying electronic records as either originals or duplicates may have little practical value; the reliability and accuracy of the process or system used to produce the records will likely be a more important consideration by the courts in determining whether or not to admit them into evidence. (Many such records can be expected to have indexing or other control data added for purposes of location and retrieval, making them duplicates by definition.)

III. Use of Records Prepared by Information Technology Systems in Legal Proceedings

A. Rules of Evidence. Modern rules of evidence are based on statutes and special rules prescribed by the courts, rather than on individual court decisions. The federal government follows the Federal Rules of Evidence while most states have adopted one or more uniform laws that establish the admissibility of records in evidence such as the Uniform Business Records Act, the Uniform Photographic copies of Business and Public Records as Evidence Act, and the Uniform Rules of Evidence. North Carolina statutes have incorporated language accomplishing a similar result.

B. Laying a Proper Foundation. Now, rules of evidence permit original and duplicate records to be admitted into evidence provided that a proper foundation is laid by a showing that the records are authentic.

Laying a foundation is "the practice or requirement of introducing evidence of things necessary to make further evidence relevant, material or competent. . ." (Black's Law Dictionary). For example, visible records produced with a computer in the form of computer printouts or computer output microfilm (COM) are considered originals if an appropriate witness convinces the court that they accurately reflect the information in the computer files. Information processing methods commonly employed in the business world are readily accepted as reliable, while new information system technologies are subject to greater scrutiny.

C. Life Expectancy of Media and Admissibility of Records. The life expectancy of the media per se has no bearing on the admissibility of the records maintained on the media. This means that for some technologies it may be necessary to periodically convert, regenerate, copy, or transfer the records from one medium or technology to another in order to preserve them.

D. Admissibility of Records Transferred or Converted to Another Medium. The transfer or conversion of records from one medium or technology to another should not affect their admissibility as evidence provided that quality and accuracy do not functionally change. Procedures followed during the transfer or conversion should be carefully documented.

IV. Records Quality Criteria

The following features of a record should appear with sufficient clarity so that each can

be recognized.

* Individual letters, numbers, and symbols

* Combination of letters, numbers, and symbols forming words or sentences

* Graphics such as signatures, logos, pictures, etc.

* Sounds

* Other features of records such as color, shape, texture, etc., that relate to the content

of the information

In other words, a record should be legible, accurate, and complete in that all features essential to an accurate reading or comprehension of the record should be present.

V. Characteristics of the Process or System Used to Prepare Records

Certain characteristics of an information technology system used to prepare records ensure the accuracy of the information. The presence of these characteristics demonstrates that the process or system is reliable and accurate, hence capable of producing trustworthy records.

A. Records Produced As Part of a Regularly Conducted Activity. Records produced in he regular course of business are admissible if it can be established that the process or system used to produce them is reliable and accurate. A regularly conducted activity may include a regular pattern of activity to produce the records on a daily, weekly, monthly, yearly, or other cyclical schedule.

A regularly conducted activity may also include records created as part of a regular program of the organization, but at irregular times. For example, when a planned program results in the one time reproduction of records created prior to a specific year, this will be viewed as a program proceeding in the regular course of business, even though the reproduction only occurred once.

B. Accuracy. Records produced by methods to ensure or enhance accuracy will be more readily admissible in evidence. This process may include systematic quality control and audit procedures, as well as operational oversight by someone with detailed knowledge of the process or system used to produce the records.

C. Timeliness. Records produced within a short period after the event or activity occurs tend to be more readily acceptable as accurate than records produced long after the event or activity. However, a challenge to admissibility of a later-produced record can be overcome by a showing that the time lapse had no effect on the record's contents. For example, a computer printout of a statistical report produced annually in the regular course of business can be shown to accurately consolidate data compiled over the course of a year.

VI Components of the Process or System Used to Prepare Records

The components of a process or system can be reviewed to determine how well the preparation of records is controlled. The admissibility of records can successfully be defended from challenge to the trustworthiness of the process if the process or system includes adequate procedures, training programs, audit trails, and audits.

A. Procedures. The establishment of procedures through the use of detailed steps to be followed when creating, modifying, duplicating, destroying, or otherwise managing records provide for consistent quality control, problem resolution, and other activities that might otherwise be subject to inconsistent action, multiple interpretation, or misinterpretation.

Established procedures demonstrate what an organization plans to do in managing and controlling the process or system--as opposed to what it actually does. The trustworthiness of an organization's records offered in evidence might well be judged by the established procedures and how closely they are followed. Deviations can be expected to be closely scrutinized, especially if the deviations are from legally required procedures.

B. Training Programs. Formal training programs for staff on details of the system procedures raise a strong presumption that the procedures were correctly followed. If an organization can show the court that staff knew what procedures they were supposed to follow, it can also show that there is a high likelihood that the procedures were in fact followed.

C. Audit Trails. Audit trails document how the records were created, modified, stored, and reported, who used the system, when they used it, what they did while using the system, and what were the results. Properly implemented audit trails can automatically detect who had access to the system, whether staff followed standard procedures or whether fraud or other unauthorized acts occurred or might be suspected. They provide independent confirmation that proper procedures were in fact followed.

D. Audits. Audits performed periodically confirm that the process or system produces accurate results. Audits must compare the procedures stated in the procedure's documentation with procedures actually followed. They confirm that the process or system adheres to this guideline.

The term audits as used here is different from quality control specified in most system procedures. Quality control can be performed by individuals creating the records to verify the accuracy at the time of creation. This ensures the accuracy of the system for operational purposes.

Audits may be used to confirm the accuracy of the process or system for purposes of admissibility of records in evidence. When ruling on the admissibility of the records, courts may require that audits be performed by an independent source (i.e., persons other than those who created the records or persons without an interest in the content of the records, such as a trained auditor having organization-wide audit responsibilities).

No particular method of auditing is required for a record, original or duplicate, to be admitted as evidence. Audits should be designed to evaluate the process or system's accuracy, timeliness, adequacy of procedures, training provided, and the existence of audit trails.

For purposes of original records, audits also should focus on whether the records incorporate the information of the acts, events, or activities leading to the record.

For duplicates, audits also should confirm that the duplicates accurately reproduce the originals. This normally involves comparing statistically valid samplings of originals to their corresponding reproductions prior to any destruction of the originals.

VII. Documentation

Documentation of the process or system provides an enduring verification of the process or system followed to produce or reproduce the records. Without documentation, witnesses must rely solely on memory--a form of evidence that, over time, becomes less trustworthy and susceptible to contradiction. Documentation preserves the information about the process or system independent of the individuals involved and can be used to prepare exhibits to guide witness testimony. Generally speaking, the documentation can be introduced into evidence for the jury to scrutinize during their deliberations.

A. Content. A knowledgeable person should prepare and maintain documentation for the process or system used to produce the records. Documentation should be complete and up-to-date. This enables staff to be aware of and follow the most current procedures. It also ensures that reliable system documentation is immediately available if needed for court proceedings. Documentation should be sufficient to demonstrate the steps required to get from the beginning to the end of the process and should describe the system hardware and software. In some proceedings, a general, non-technical description of the process or system will be sufficient. In others, more detailed documentation may be required by the courts, including verification that any equipment or software involved operated properly at the time the records were produced.

Training documentation should include documentation of distribution of the written procedures, course materials, attendance of individuals at training sessions, remedial or refresher training programs, certifications of training completion, and other relevant information, including dates.

Actual audit trail records demonstrate what activities actually took place as part of the process or system. The actual audit reports indicate whether the statistically valid sampling of records produced accurate results and what remedial procedures were followed if the expected level of accuracy was not achieved.

For purposes of laying a foundation for admissibility of records in evidence, actual system procedures followed during the period that the records in question were produced should be maintained in sufficient detail to enable a qualified witness (e.g., the records custodian) to rely on the documentation in describing the process or system to the court. The documentation should explain what should have been done, and what was actually done, and explain any deviations from standard procedures. The training, audit trail, and audit documentation should also be presented to confirm the accuracy of the process or system.

B. Retention. At least one set of documentation should be maintained during the period for which the records produced by the process or system could likely be subject to court review. When the documentation changes, the old versions should continue to be maintained for the requisite period. The court will determine the admissibility of the records in evidence based on the accuracy of the process or system in effect at the time the records were produced.

VIII. Availability of Process or System for Outside Inspection.

The courts encourage pretrial discovery of computer programs and related materials, recognizing that such information facilitates effective cross-examination. The guideline applies this principle to records produced by any information systems technology.

The process or system used to produce or reproduce records introduced into evidence is subject to outside inspection by opposing parties and the court. Outside inspection may include:

Review of procedures documentation

Review of system operation

Independent inspection and quality control tests

Independent audit

Testing of process or system operation

Review of equipment design and software documentation

Review of training programs

Any other matter related to the operation of the process or system

If the records were produced on the current or substantially similar system, access to the system may be required to be provided to outside parties upon request to process their own test data. If the system used to produce the records no longer exits, any existing documentation described above must be made available. Failure to produce pertinent documentation because it no longer exists may jeopardize admissibility of the records if their trustworthiness cannot otherwise be established.

In sum, the hardware and software used and any relevant step of the process or system can be reviewed by the outside party.

IX. Legal Status of Records Offered as Evidence.

When determining the admissibility of records into evidence, the court will consider the reliability and accuracy of the process or system used to produce or reproduce the records. The particular form or format of the records shall have no bearing on their legal status regarding admissibility. Likewise, the destruction of original records after reproduction shall not affect the legal status of duplicate records regarding their admissibility.

All that is required for records to be deemed admissible is a prima facie showing that the process or system is trustworthy in terms of producing an accurate result. Once the records are admitted, the trustworthiness of their content will remain subject to challenge. For example, a computer printout of a record is admissible if it is shown to be an accurate reflection of the source data used to create the record, but this does not mean the source data is necessarily correct.

Appendix A

Excerpts of Relevant North Carolina General Statutes

Chapter 121.

Archives and History

G.S. 121-4 Powers and duties of the Department of Cultural Resources.

(2) To conduct a records management program, including the operation of a records center or centers and a centralized microfilming program, for the benefit of all State agencies, and to give advice and assistance to the public officials and agencies in matters pertaining to the economica and efficient maintenance and preservation of public records.

G.S. 121-5. Public records and archives.

(a) State Archival Agency Designated. - The Department of Cultural Resources shall be the official archival agency of the State of North Carolina with authority as provided throughout this Chapter and Chapter 132 of the General Statutes of North Carolina in relation to the public records of the State, counties, municipalities, and other subdivisions of government.

(b) (Effective October 1, 1994) Destruction of Records Regulated. - No person may destroy, sell, loan, or otherwise dispose of any public record without the consent of the Department of Cultural Resources. Whoever unlawfully removes a public record from the office where it is usually kept, or alters, mutilates, or destroys it shall be guilty of a Class 3 misdemeanor and upon conviction only fined at the discretion of the court.

Chapter 132.

Public Records

G.S. 132-1. "Public records" defined.

"Public record" or "public records" shall mean all 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, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions. Agency of North Carolina government or its subdivisions shall mean and include 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.

G.S. 132-3. (Effective January 1, 1995) Destruction of records regulated.

(a) Prohibition. - No public official may destroy, sell, loan, or otherwise dispose of any public record, except in accordance with G.S. 121-5, without the consent of the Department of Cultural Resources. Whoever unlawfully removes a public record from the office where it is usually kept, or alters, defaces, mutilates or destroys it shall be guilty of a Class 3 misdemeanor and upon conviction only fined not less than ten dollars ($10.00) nor more than five hundred dollars ($500.00).

G.S. 132-8.1. Records management program administered by Department of Cultural Resources; establishment of standards, procedures, etc.; surveys.

A records management program for the application of efficient and economical management methods to the creation, utilization, maintenance, retention, preservation, and disposal of official records shall be administered by the Department of Cultural Resources. It shall be the duty of that Department, in cooperation with and with the approval of the Department of Administration, to establish standards, procedures, and techniques for effective management of public records, to make continuing surveys of paper work operations, and to recommend improvements in current records management practices including the use of space, equipment, and supplies employed in creating, maintaining, and servicing records. It shall be the duty of the head of each State agency and the governing body of each county, municipality and other subdivision of government to cooperate with the Department of Cultural Resources in conducting surveys and to establish and maintain an active, continuing program for the economical and efficient management of the records of said agency, county, municipality, or other subdivision of government.

G.S. 132-8.2. Selection and preservation of records considered essential; making or designation of preservation duplicates; force and effect of duplicates or copies thereof.

In cooperation with the head of each State agency and the governing body of each county, municipality, and other subdivision of government, the Department of Cultural Resources shall establish and maintain a program for the selection and preservation of public records considered essential to the operation of government and to the protection of the rights and interests of persons, and, within the limitations of funds available for the purpose, shall make or cause to be made preservation duplicates or designate as preservation duplicates existing copies of such essential public records. Preservation duplicates shall be durable, accurate, complete and clear, and such duplicates made by a photographic, photostatic, microfilm, micro card, miniature photographic, or other process which accurately reproduces and forms a durable medium for so reproducing the original shall have the same force and effect for all purposes as the original record whether the original record is in existence or not. A transcript, exemplification, or certified copy of such preservation duplicate shall be deemed for all purposes to be a transcript, exemplification, or certified copy of the original record. Such preservation duplicates shall be preserved in the place and manner of safekeeping prescribed by the Department of Cultural Resources.

Chapter 8, Article 3

Public Records

G.S. 8-34. Copies of official writings.

Copies of all official bonds, writings, papers, or documents, recorded or filed as records in any court, or public office, or lodged in the office of the Governor, Treasurer, Auditor, Secretary of State, Attorney General, Adjutant General, or the State Department of Cultural Resources, shall be as competent evidence as the originals, when certified by the keeper of such records or writings under the seal of his office when there is such seal, or under his hand when there is no such seal, unless the court shall order the production of the original. Copies of the records of the board of county commissioners shall be evidence when certified by the clerk of the board under his hand and seal of the county.

CASE NOTES

"Copy" Defined. - A copy, within the meaning of this section, is a transcript of the original, i.e., a writing exactly like another writing. State v. Champion, 116 N.C. 987, 21 S.E. 700 (1895); Wiggins v. Rogers, 175 N.C. 67, 94 S.E. 685 (1917).

Certification of Copy. - The power of an officer, who is the keeper of certain public records, to certify copies is confined to a certification of their contents as they appear by the records themselves, and the records must, therefore, be so certified, for he has no authority to certify to the substance of them, nor that any particular fact, as a date, appears on them. Wiggins v. Rogers, 175 N.C. 67, 94 S.E. 685 (1917).

Original Record Is Admissible. - This section does not prevent the admission in evidence of the original record itself. State v. Voight, 90 N.C. 741 (1884); State ex rel. Carolina Iron Co. v. Abernathy, 94 N.C. 545 (1886). See State v. Hunter, 94 N.C. 829 (1886); Charles S. Riley & Co. v. Carter, 165 N.C. 334, 81 S.E. 414 (1914); Blalock v. Whisnant, 216 N.C. 417, 5 S.E.2d 130 (1939).

While certified copies of records are admitted in evidence, the originals are not thereby made incompetent. State v. Joyner, 295 N.C. 55, 243 S.E.2d 367 (1978).

Chapter 8, Article 4A

Photographic Copies of Business and Public Records.

G.S. 8-45.1. Photographic reproductions admissible; destruction of originals.

If any business, institution, member of a profession or calling, or any department or agency of government, in the regular course of business or activity has kept or recorded any memorandum, writing, entry, print, representation, X ray or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of the same to be recorded, copied or reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless held in a custodial or fiduciary capacity or unless its preservation is required by law. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not and an enlargement or facsimile of such reproduction is likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court.

The introduction of a reproduced record, enlargement or facsimile, does not preclude admission of the original.


Editor's Note. -- Notwithstanding the above citation, G.S. 121-5 (b) and G.S. 132-3 (a) require the consent of the Department of Cultural Resources before any public record, original or copy, may be destroyed.

CASE NOTES

Admissibility of "Written Hearsay". - North Carolina countenances the introduction of test results, certified copies of official documents and records, as well as other writings, which, but for statute or decisional authority, would be written hearsay. In re Arthur, 27 N.C. App. 227, 218 S.E.2d 869 (1975), rev'd on other grounds, 291 N.C. 640, 231 S.E.2d 614 (1977).

Evidence Reproductions Are Primary. - Reproductions are made and kept among the records of many banks in due course of business. Their accuracy is not questioned. As proof of payment they constitute not secondary but primary evidence. State v. Shumaker, 251 N.C. 678, 111 S.E.2d 878 (1960). Photostatic copies of deposit slips and checks made by an employee of a bank in the usual course of business and identified by such employee are competent as primary evidence without proof of the loss or destruction of the originals. Jones v. Metropolitan Life Ins. Co., 5 N.C. App. 570, 169 S.E.2d 6 (1969).

Photocopies are admissible as originals. - Pinner v. Southern Bell Tel. & Tel. Co., 60 N.C. App. 257, 298 S.E.2d 749, cert. denied, 308 N.C. 387, 302 S.E.2d 253 (1983).

Business records are admissible as an exception to the hearsay rule when they (1) are made in the regular course of business, at or near the time of the events recorded; (2) are original entries; (3) are based on the personal knowledge of the individual making the entries; and (4) are authenticated by a witness familiar with the system by which they were made. Pinner v. Southern Bell Tel. & Tel. Co., 60 N.C. App. 257, 298 S.E.2d 749, cert. denied, 308 N.C. 387, 302 S.E.2d 253 (1983).

Failure to Show That Copy Was Made in Regular Course of Business or by Whom It Was Made. - A photostatic copy of a purported written designation of plaintiff by deceased as the beneficiary of deceased's governmental life insurance benefits should not be admitted as evidence where plaintiff failed to show that the copy was made in the regular course of business or activity of any federal agency or by whom it was made. Jones v. Metropolitan Life Ins. Co., 5 N.C. App. 570, 169 S.E.2d 6 (1969).

Appendix B


Electronic Records Production Control Self-Warranty

Purpose of Self-Warranty

The increased complexity of safeguarding the integrity of public records produced by means of information technology requires greater attention to issues relating to security, accuracy, reliability, and accountability. The Electronic Records Production Control Self-Warranty is designed to be used as a self-evaluation tool in an effort to ensure that electronic records produced by state, county, and municipal agencies, and other subdivisions of government are created, reproduced, and otherwise managed in accordance with guidelines that will enhance their reliability and accuracy.

Implementation Suggested but Not Required

While the warranting of electronic records, as the term is defined below and in section II of the guidelines, is suggested, it is not now required. Agencies choosing to begin the process may reproduce the model self-warranty form. It should be signed by the agency records officer or other responsible official and retained by the originating agency. The warranties should be made available to records analysts and auditors.

Limitation of Self-Warranty

The self-warranting of records in itself does not authorize the destruction of records, originals or copies, nor does it change current records retention and disposition scheduling procedures.

Self-Warranty Based on Guidelines Publication

The self-warranty form is based on the suggested guidelines set forth in this publication. A copy of the guidelines can be obtained by contacting the Division of Archives and History of the North Carolina Department of Cultural Resources, 109 East Jones Street, Raleigh, North Carolina 27601-2807, telephone no. (919)733-7305, fax no. (919)733-8807.

Authority

Chapters 121 and 132 of the North Carolina General Statutes define public records and assign responsibility for regulating their preservation and destruction to the Department of Cultural Resources. This responsibility is carried out through the Archives and Records Section of the Division of Archives and History. Under this program, the section analyzes the records created by state agencies, counties, municipalities, and other subdivisions of government, prepares records retention and disposition schedules, maintains the State Archives, and provides services related to records retention and disposal. It is contemplated that at some time in the future the Division will use the suggested guidelines and self-warranty in creating rules which would be applicable to electronic records with regard to the Division's duties under Chapters 121 and 132.

Electronic Record Defined

Electronic Record is defined as a record created or reproduced in any medium by means of any system requiring the aid of electronic technology to make the record readable or otherwise comprehensible by ordinary human sensory capabilities. (This definition does not apply to microform records, which can be read with the aid of a magnifying glass.)

Responsibility for Ensuring Integrity of Electronic Records

The government agency producing electronic records and/or reproductions is responsible for ensuring their authenticity and accuracy. The State Archives and Records Section is in no position to certify the authenticity and accuracy of any records, whether originals or reproductions, produced by the originating agency.

 

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