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WECT Investigates: In test of public records law, New Hanover completely withholds dozens of confidential emails

Attorney General Josh Stein says public records laws are crucial to a government for the people.
Published: Mar. 17, 2022 at 3:51 PM EDT
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WILMINGTON, N.C. (WECT) - North Carolina public record laws are clear: documents created by the government are public records, except in limited cases where information can be kept confidential. However, state law does say anytime something is deemed confidential, the government does have to provide non-confidential information that might be comingled in those records.

“The North Carolina public records law says if confidential and non-confidential information are commingled, that the public agency has to separate them, provide you the non-confidential portions and the law is explicit that they bear the burden of doing that, and they bear the burden of that expense,” First Amendment Attorney Amanda Martin said.

In an attempt to put public records laws to the test, WECT requested emails from county commissioners and county management to see what sort of things officials are designating confidential.

The first request was for a three-month period, and covered 41 individuals.

“Among these 41 people, there were a total of 32,904 email messages sent from June 1-August 31, 2021. Of those, 9,543 were marked confidential, or about 29 percent,” New Hanover County spokesperson Jessica Loeper said.

When asked how the county ensures information that should be public is not mistakenly withheld as confidential, Loeper said the county trains its employees, but noted there is no formal auditing system in place.

Logistically, auditing the thousands of emails sent each month by all county employees would be a large task, but there is precedent in the Cape Fear area of another local government ensuring its employees comply with the law.

“My office will go through the emails as they come in, and not only look for emails that should be marked confidential, but if they see an email that should not be confidential, we will tag that and ask the sender to resend without the confidential headline on the email,” Town Manager of Carolina Beach Bruce Oakley said.

That process is admittedly easier for Carolina Beach, which has far fewer employees, and therefore fewer emails, than New Hanover County.

To be clear, WECT has not found any evidence of any wrongdoing by the county’s employees or elected officials. But public records advocates caution a lack of checks and balances opens the door to abuse, whether it be accidental or intentional.

Attorney General Josh Stein says public records laws are crucial to a government for the people.

“Public records and open meetings law are essential to the well functioning of our democracy,” he said. “Basically, the government is of the people. And that means the work we do, the papers we produce, the meetings we hold should be subject to the people’s scrutiny. And it’s with that scrutiny, that then the voters can better hold their government accountable. That’s the whole rationale behind these laws.”

With nearly 10,000 emails deemed confidential in that first request, it would have been a large request to ask for all of those emails to be sifted through by the county, so, WECT limited a follow up request to just five days.

A more manageable request

With nearly 10,000 emails meeting the criteria of our initial request, WECT limited its request to just confidential emails within a five-day period - August 23-27, 2021 - so as not to overly burden the county.

The county said 60 emails in that timeframe were marked confidential. Given the significantly smaller number of responsive emails, WECT requested the county go through these emails, redact any confidential information and provide us with the remaining information that is not.

“Upon first glance it looks like there are about 60 emails marked confidential in the subject line, so now, our legal office will have to review those and redact anything needed. I don’t know how long that will take (it involves redacting, printing and scanning of emails),” Loeper said.

Ultimately, the county declined to go through and redact the emails, instead withholding them in their entirety.

“Legal maintains that emails marked confidential by the custodian of record that fall within one of the county’s confidential protected categories as outlined by General Statute 132-2 are protected and not required to be shared. Redaction of the content would require that the entire email be redacted because a partial redaction would provide surrounding information that would breach the confidentiality. So the County Attorney’s Office maintains that all emails marked confidential have been deemed confidential by the custodian of record and must remain confidential and cannot be disclosed,” a county spokesperson said in an email.

The county’s legal office emphasized that all 60 emails were correctly marked as confidential. The county cited General Statute 132-3 as the reason for not providing the documents, however, the exemptions are broad and cover a variety of exceptions to public record laws.

The county did not provide the specific exemptions for each of the 60 emails that were withheld.

Martin said simply claiming something is confidential is not enough to withhold information from the public.

“They have to have a statute that provides an exemption. They can’t just say generically that’s confidential, or that’s proprietary, they have to provide a statute as the basis for withholding,” she said.

Although Stein could not offer his opinions on the withholding of emails from county leaders, he did stress the importance of public officials operating with transparency.

“What I can say is, as a principle, the work that we do as public officials, the work that we do as public servants or government workers, is that of the people therefore the people have the right to see it. And sometimes we’re not comfortable with what it may disclose, but that That doesn’t change its nature, meaning that it still belongs to the people in North Carolina,” he said.

It’s worth noting the county does provide public access to nonconfidential emails by way of a public terminal located in the Government Center. Members of the public can access the email accounts of department heads and county commissioners. It’s an effort that not every government takes, and it’s not required by law. New Hanover County’s legal team insists they work to ensure transparency on a day-to-day basis.

“New Hanover County continues to be transparent in actions and decisions, and will continue to make all documents that are not confidential or protected available and accessible to the public and media,” according to a statement.

Several times, WECT requested an on-camera interview with the county’s attorneys. Those requests was refused.

“The statement provided by the County Attorney’s Office shares their legal position, and they have a standing practice of not participating in on-camera interviews (this is across most any topic and not specific to this ask, just so you are aware),” Loeper said.

“The government belongs to the people”

The premise of public records law is to ensure that the public knows what their government officials are doing, and what business they are conducting on behalf of the people they represent.

“Because our entire democracy is based on an informed citizenry … we want to be sure that when people vote, when they choose their elected officials when they vote on particular issues, that they have as much information as they possibly can to make smart, informed decisions,” Martin said. “And to accomplish that one of the things that the North Carolina legislature has done is we have a public records law that says the public is entitled to see and get copies of any document made or received.”

Stein’s office houses the state’s Open Government Unit, and he has created a comprehensive document that helps people understand what is, and what is not a public record.

“My office produces a guide to open government and public records that we make available to all public agencies in North Carolina, whether it’s local government or state government. And of course, my office represents state governmental agencies, not the locals, and we advise them on how to be in compliance with the law,” Stein said.

Stein admits there are exceptions to the law, but in general, records our government leaders create should be kept public.

“The general premise of our public records laws are that the records that the government creates and carrying out its work belong to the people because the government belongs to the people. And yes, there are exceptions to that rule. But that’s what they are, is their exceptions. The general rule is that the information is the people’s,” Stein said.

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