In recognition of Sunshine Week, the executive director of the state's municipal organization calls on cities and towns to consider a review of their public records compliance policies with an eye toward transparency. Read the full article below.
Welcome the rays of our sunshine laws
By S. Ellis Hankins
NCLM Executive Director
*March edition of Southern City, reprinted here with permission
Sunshine Week this year was March 14-20. While some people might think this was a lead-up to the first day of Spring or a sign that this long, cold winter has ended finally, municipal officials should know better. Sunshine Week is that annual event when reporters and pundits analyze whether governments – city, county, state and federal – obey the laws on open government.
For North Carolina cities and towns, that means the open meetings and public records laws. These statutes apply to most aspects of municipal government and have the very admirable goal of providing citizens broad access to the documents and meetings of their local governments. Our democracy thrives on an informed and involved citizenry, and open meeting and public records laws are an essential tool for every democracy.
These days, the buzzword is transparency. Too many instances of mismanagement and corruption at various levels of government have increased the public’s mistrust in government. Americans traditionally have had a healthy skepticism about government, but now, more seem deeply suspicious of all government actions, and some believe that government officials act for private gain rather than in the public interest.
Municipal officials must be transparent in their decision-making and should encourage citizens to examine the public record, so that distrust is held to a minimum and more people become engaged in the decisions that will affect their lives and their pocketbooks.
The challenges, however, reside in the details of how you achieve and maintain that transparency. Compliance is a continuing process, especially with the way technology is changing communications and data collection and storage.
Consider reviewing your procedures on public records and open meetings. Annual or semi-annual reminders about the laws would be helpful to employees and elected officials, especially the newly elected and newly hired. Below are some points to consider.
Do your employees understand the definition of a public record? A public record, according to state statute, is not just a printed document or report but also “maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data processing records, [and] artifacts . . . regardless of physical form or characteristics.” Public records include items “made or received pursuant to law or ordinance in connection with the transaction of public business.” And public records are not just those documents required to be created by a particular law, but records created in carrying out public duties.
Are sufficient municipal staff members trained to handle requests for public records? The clerk is designated as the custodian of public records, but requests for records can be made to virtually any employee who has contact with the public. Even if the requests ultimately are handled by designated individuals in your town or city, all employees need a basic understanding. For example, all should know that those requesting a public record are not required to give their names or tell why they want the record.
Do you have a copy of the Records Retention and Disposition Schedule, published by the N.C. Division of Historical Resources, N.C. Department of Cultural Resources? You can download a copy from http://www.records.ncdcr.gov/local/municipal_2009.pdf. This is a detailed schedule providing information on how long each type of record must be kept and when the document or record may be destroyed or deleted.
Do you have a policy on retention of emails? An email, if it is written or received in transaction of public business, is a public record. Increasingly, officials are using emails to conduct official business including correspondence, agendas, reports, policies and memos, draft documents for review and work schedules. All are public records. And these emails are public records regardless of whether you send or receive the email from a municipal or a personal email account. You need to make sure you have a system for retaining emails as required. Some must be kept indefinitely, but others are of short-term value and can be disposed of after relatively brief periods. Guidelines are available on the N.C. Department of Cultural Resources’ website section, Government Records Branch of North Carolina, at http://www.records.ncdcr.gov/guidelines.htm#short. Just remember, you can’t delete emails that are public records just because you are running out of computer memory.
Do you have an index of all your computer databases? The General Assembly enacted a law back in 1995 that requires all cities and towns to maintain an index of all computer databases that are created or maintained by the town or city for official purposes. While this does not require you to index every spreadsheet that an employee may set up for his own purposes – a list of when phone calls were made, for example – the index obviously may be fairly extensive considering the widespread use of computers.
If your city or town is using Facebook, Twitter or any other form of social media, make sure you are complying with the public records law. Again, these should be considered public records, and you need to make sure you take steps to retain these and your website as required. Ask your information technology experts about digital archiving or alternate retention methods.
Ask your municipal attorney to review the open meetings law requirements with your governing board and all of your municipal committees and commissions that are subject to the law. Your attorney can ask the League or the UNC-Chapel Hill School of Government for advice if needed. Assume you always operate in the open and use closed sessions only when necessary and legal. There is a presumption by many that you hold closed sessions to hide unpopular or inappropriate decisions from public scrutiny. Make review of the Open Meetings and Public Records laws a routine part of municipal operations. Develop checklists for implementation and written policies and procedures.
Get training. The Essentials of Municipal Government course includes an open meetings and public records law primer. We often offer similar sessions at the League’s annual conference, and other professional associations, such as the N.C. Association of Municipal Clerks, offer training.
We can disagree about what the law should be and sometimes about what the current law allows and requires. But all government officials must educate themselves and try their best to comply consistently and fully.
Think of these laws as tools for citizen engagement. Sunshine Week is so named to invoke that governments must operate in the sunshine. Show your citizens that your city or town welcomes the rays.
Resources
- Attorneys at the N.C. League of Municipalities
- Faculty at the UNC-Chapel Hill School of Government
- Open Meetings and Local Governments in North Carolina: Some Questions and Answers, David M. Lawrence, Seventh Edition 2008, UNC School of Government
- Public Records Law for North Carolina Local Governments, David M Lawrence, 1997, UNC School of Government
- Public Records Law 1997-2003 Supplement, David M. Lawrence, 2004, UNC School of Government
- Records Retention and Disposition Schedule, Municipal Government Records Branch, Archives and History Section, Division of History and Records, N.C. Department of Cultural Resources
- http://www.records.ncdcr.gov/local/municipal_2009.pdf