1. The Public Records Act: It Affects You More Than You Think Tina Dadio, University Public Records Officer/Paralegal David E. Broome, Jr., Vice Chancellor and General Counsel Fall 2014 Legal Symposium October 16, 2014 Office of Legal Affairs

2. Public Records General Overview North Carolina Public Records Act (NCGS § 132-1 et seq.) Exceptions Contact Office of Legal Affairs with any questions

3. What is a Public Record? All documents of any type “regardless of physical form or characteristics…made or received in connection with the transaction of public business by any agency of North Carolina”. – Note: Basically, all records created or received in the course of university business in whatever format is considered a public record.

4. Format and Location “Whatever format…regardless of location” FORMAT Papers, letters, maps, books, photographs, films, sound recordings, e-mail, text messages, voice mail messages, etc. PHYSICAL LOCATION Records on your personal devices (computers, smart phones, IPad, etc.)  Note: The status of a record under the law is determined based on its content, not its location…

5. WHO and HOW CAN ONE REQUEST A PUBLIC RECORD? ANYONE can request a public record Must allow inspection May not demand the identity of requestor or the reason for the request No requirement for written request Must make copies, but we may charge for  Actual costs AND  Extensive services

6. Responding to Requests Must respond “as promptly as possible” Do not have to create, but…  Whatever format we can provide them  Must redact confidential information

7. Exceptions… Student Records (such as academic, counseling records, and medical records- Family Educational Rights and Privacy Act (FERPA) restricts information) Personnel records (confidential under the State Personnel Privacy Act, but certain information about each employee is open to public inspection under NCGS § 126-23) Trade Secrets (NCGS §66-152) Certain personally identifiable information – passwords, date of birth, signatures, SS#s, DL#s, admissions information Certain criminal investigation and law enforcement records A few other narrow exceptions

8. Personnel Records that are Public… (NCGS § 126-23) Name Age Date of original hire Term of employee contract (written or oral) Current position Title Current salary Office of department assigned to A few other exceptions…

9. Managing your Inbox: Email as a Public Record Email can be a public record, if it is made or received by a state employee in connection with State business. Emails that are considered public records must be retained according to University Policy 605.3, Retention, Disposition, and Security of University Records, found here: http://legal.uncc.edu/policies/up-605.3http://legal.uncc.edu/policies/up-605.3 Note:  Personal email is not a public record.  Purely administrative email that are transitory or have no real value may be destroyed or erased when you determine that it no longer is considered necessary or valuable. (joke of the day, appointment confirmation, junk mail)

10. Tips for Managing Email Use subject lines that are clear and informative (e.g. instead of “meeting minutes” use “1/1/2014 Department Meeting Minutes”). If a document is confidential, consider using “Confidential” in subject line. However, this label is mostly used for “flagging” item – whether it’s really confidential is a legal determination. Be mindful prior to sending your response to an email. (i.e. use discretion). Manage email based on its content and according to our record retention policy.

11. Public Record or Not? Example #1: During the review process for promotion and tenure of a faculty candidate, are recommendations from the chair a public record? Answer: No, only the date and a general description of the reasons of the promotion (or, alternatively, the date and type of the separation) is a public record and can be inspected by anyone upon a public records request.

12. Public Record or Not? Scenario #2: Email sample from co-worker to co-worker Email sample from colleague outside of UNCC to co-worker received on a personal email address “I sent you the partnership agreement between UNC Charlotte and the XYZ Company to your work email address. Just between me and you, I think this agreement is horrible. Before I forget, here is my Driver's License number for you to add to the insurance policy: NCDL 1234000.” Answer: Yes, except license # is considered personally identifiable information and would be redacted.

13. Public Record or Not? Scenario #3: Email sample from co-worker to co-worker “Do you think you would have time to bake something for the Mountain Island Elementary bake sale? Thanks!” Answer: This is considered a personal email and not a public record.

14. IN OTHER WORDS… DON’T WRITE IT OR EMAIL IT If you don't want to read it on the front page of the Charlotte Observer or other local newspaper…. DON’T WRITE IT OR EMAIL IT

15. PROTECTING RESEARCH DATA FROM DISCLOSURE

16. Legislature has now provided an exemption for certain “research data”. Seems to be good protection for our research enterprise, but questions remain. GS §116-43.17 What has changed?

17. General Statutes §116-43.17 Confidentiality of research data, records, and information of a proprietary nature- research data, records, or information of a proprietary nature, produced or collected by or for state institutions of higher learning in the conduct of commercial, scientific, or technical research where the data, records, or information has not been patented, published or copyrighted are not public records as defined by G.S. 132- 1 ”. [emphasis added].

18. Research data is data that is collected, observed, or created, for purposes of analysis to produce original research results. What is Research Data?

19. What about research data sent to UNC Charlotte by a third party? What does the “copyrighted” language imply? What does this mean for retention requirements? What is the interplay with “trade secret” exception? Other Questions

20. Requesting Research Data Methods of Disclosure: State Public Records Act Freedom of Information Act (FOIA) Subpoenas or Litigation Discovery Requests Sponsor or Journal Access Requirements

21. CONTACT INFORMATION For further information on Public Records Contact the Office of Legal Affairs or Tina Dadio at 7-8592 Refer to University Policy 605.8 https://legal.uncc.edu/policies/up-605.8

22. QUESTIONS…