COUNTY BOARD RECORDS, Retention, Production, and

Confidentiality

April 21, 2009Don Wright, General CounselNC State Board of Elections

What are “public records”?

Remember all records - including documents, tape recordings, photographs, videotapes, or any other record, regardless of whether they are draft or final in form - that are made or received in connection with the transaction of public business are defined as public records. They can be in any physical form including electronic. The person seeking a record may request that it be provided in any format that is available through the public agency, and the agency must have indexes of data bases contained on their computers. (GS 132-1).

What are the “election” exceptions to being a “public record” and being subject to

disclosure? • Political Committee Financial Accounts

Numbers GS 163-278.7 (7)• Voted or Cast Ballots GS 163-165.1(e)• Social Security Numbers GS 163-82.10• Drivers License Numbers GS 163-82.10• Date of Birth GS 163-82.10 and 163-82.10B

(Giving out age is OK)• Confidentiality Program GS 163-82.10

What are the “general” exceptions to being a “public record” and being subject to

disclosure? General Exceptions found in GS 132-1 through 132-

1.11• Attorney/Client Communications• Trade Secrets• Investigations (Including Election Investigations)• Personnel Records• 911 Databases• GIS Systems • Security Information

Federal Election Records Retention42 USC 1974

Sec. 1974. Retention and preservation of records and papers by officers of elections; deposit with custodian; penalty for violation Every officer of election shall retain and preserve, for a period of twenty-two months from the date of any general, special, or primary election of which candidates for the office of President, Vice President, presidential elector, Member of the Senate, Member of the House of Representatives, or Resident Commissioner from the Commonwealth of Puerto Rico are voted for, all records and papers which come into his possession relating to any application, registration, payment of poll tax, or other act requisite to voting in such election, except that, when required by law, such records and papers may be delivered to another officer of election and except that, if a State or the Commonwealth of Puerto Rico designates a custodian to retain and preserve these records and papers at a specified place, then such records and papers may be deposited with such custodian, and the duty to retain and preserve any record or paper so deposited shall devolve upon such custodian. Any officer of election or custodian who willfully fails to comply with this section shall be fined not more than $1,000 or imprisoned not more than one year, or both. (Pub. L. 86-449, title III, Sec. 301, May 6, 1960, 74 Stat. 88.)

How is a public information request made?

• There are no formal required forms for such requests.

• They can be made by any “person”, not just a N.C. citizen. (GS 132-1)

• Public agencies may not set up gatekeepers of information who must consider or approve the disclosure of public records.

• As found in G.S. § 132-6, the records must be made available "as promptly as possible".

QUESTIONS ARE NOT PUBLIC RECORDS

Often we have citizens send us questions under a public records request, i.e.“Why did the board chose X location as a one-stop site?” This is something you may want to answer, but you do so not as records request. Some citizens may want to engage in “debate” over the merits of your decision under the guise of a records request.

What can you charge for copies of public records?

It is limited to actual costs. That cost may include such items as paper, a computer disk, or the like. It may not include overhead items, such as pro rated charges for staff time, equipment rental or office space. However if you have to hired additional help or work staff extra hours you can charge for those costs. Let the requestor know beforehand of these extra costs.

Inspection and Examination (GS 132-6)

Inspection and examination of records must be offered at reasonable times and under reasonable supervision. You should not leave the person alone with the records.

Person requesting does not have to disclose their purpose in wanting the records.

If confidential information is commingled in the records, the agency must remove it prior to producing (Redacting).

Values of Public Records

• Administrative ValueRecords with administrative value are the ones that help your office do its work and thereby accomplish the functions for which your office or agency was created.

• Fiscal ValueFiscal records fulfill and document fiscal authorizations, obligations, and transactions and are often subject to audits.

Values of Public Records

• Legal ValueRecords with legal value contain evidence of legally enforceable rights or obligations of government or of its citizens and, like fiscal records, can often be subject to official actions such as subpoenas, audits, investigations or lawsuits.

• Historical Value Historical or archival records document significant

events, actions, decisions, conditions, relationships, and similar developments.

Vital Records• Another category of records within your office is vital (or essential)

records. Vital records are those records that are necessary to re-start an organization's operations in the event of a natural or human-made disaster.

Vital records also• Support critical, vital, necessary and desired services; • Preserve the legal, financial, and/or functional status of the agency; • Protect and fulfill obligations to citizens of the state; and • Identify unique records.

Examples of your vital records:Board Minutes Original Paper Voter Registration FormsBallots of Prior Elections Original Paper Election DocumentsState Board/HAVA Grants Personnel Records

Disaster Preparedness THIS APPLIES BOTH AS TO RECORDS AND OPERATIONS

Develop in cooperation with SBE and your county government…..Keep it updated.

• Identify the risks: Geographic and climate hazards , man-made disasters ,

adjacent environmental risks and building and site risks. • Identify recovery vendors: If possible, make prior contact. • Develop communication strategy: Compile emergency

contact information for: All staff members, local emergency personnel,state agency contacts and facility management staff .

Develop a written preparedness plan that:

– identifies a staff member to head up the disaster preparedness efforts both as to records and operations.

– includes a plan to train staff – distributed to all staff, NC SBE and local emergency

personnel – is stored off-site – identifies vital records and prioritizes which records to

save first; this includes being familiar with your records schedule and the records created in your office

– includes provisions for compiling disaster recovery supplies.

Records Management includes:• Developing a records retention and disposition

schedule; • Managing a filing and information retrieval system,

in any format (electronic or paper); • Ensuring, according to archival and records

management practices, adequate protection of records in any format, that are vital, archival, or confidential;

• Storing active and inactive records in an economical and space-effective manner;

• Maintaining public records in a format that facilitates access by the public

Authenticity and Legal AdmissibilityRecords must be:

• authentic - Do the records come from whom they say they do? • reliable – Are the records free from unauthorized alteration or

tampering? • complete- Are all the records accounted for? • timely - Was the information created/entered in a timely

manner? • integrity- The system in which the records are stored or

managed is operating properly. • controlled - Access is available to only those that need it, to

protect records from corruption.• GS 8-45.1 allows copies, in lieu of originals, to be admissible if

they were made correctly

Scanning Public Records• Many local government agencies throughout North Carolina have started

scanning projects or are considering reducing paper records. A few things to keep in mind if you are planning a scanning project are:

• You can scan any record you like; • Scanning is not required; • Balance the cost and the benefit: sometimes offsite storage of paper

documents or microfilm is the way to go for records needing long-term retention;

• There is more to a scanning project than just scanning the documents. Consider: – Document preparation, such as removing paper clips, flattening

documents – Quality control …do you trust the employees to do the job right?– Indexing …If you don’t have a way to retrieve the documents then

what have you done?– Maintenance (i.e. storage, conversion). Electronic based storage

needs active maintenance.

Public Records Require a Retention ScheduleTwo general statutes chapters address the government's legal

obligation to take care of its records. This applies to both local and state governments

• The first is the Archives and History Act, G.S. 121, which assigns records management authority to the Department of Cultural Resources (DCR), regulates the destruction of public records, and instructs DCR to provide assistance to public officers in managing records.

• G.S. 132 is the Public Records Act, which identifies public records as the property of the people. This means that we, as government employees, are required to maintain public records and provide access to them upon request. G.S. 132 also defines the term public record.

CBE Records Retention Schedule

• A records retention and disposition schedule lists records as items. The county general schedule covers the items that are generally applicable to all county agencies/offices, like budget records and personnel files.

• Make sure you are as familiar with your County General Schedule as you are with the County Board of Elections Retention Schedule produced by the SBE.

The program schedule is specific to each agency/office and the records that agency creates; for example, the program schedule for a county budget office will be different from the county waste management office. If there are any differences in how the general and program schedules instruct you to handle a record, always follow your agency-specific program schedule. Your program schedule is the County Board of Elections Retention Schedule produced by the SBE in cooperation with the counties.

IMPORTANT!!!!!

• Keep all documents pertaining to ether State or Federal grants for at least five years after creation.

• This would cover any funds that came from a HAVA or HAVA related source. At the time you applied for the grant, you would have been notified if it came from a HAVA source.

• These records can be kept electronically

County Records Retention Focus Group

Cherie Poucher and Gary Simms….Wake CountyKathy Holland……………………….Alamance CountyDell Parker………………………………Scotland CountyLisa Bennett……………………………..Pamlico CountyLaura Dell………………………………………………….. DET

SBE Staff Contact Person is Candi Rhinehart at (919) 715-4746

Feedback Please!!!! A draft revision of the county elections office

records retention schedule is being worked on now. We are trying to allow more records to be kept in electronic format. To this end, we are working closely with the Office of State Records.Please give feedback on this revision by communicating with Don Wright or Candi Rhinehart at (919) 715-4746 or candi.rhinehart@ncsbe.gov

SBE Records Retention Schedule• The SBE Records Retention Schedule is currently

being updated with the emphasis on the increased use of electronic data and its storage and retrieval.

• Dealing with recently added documents currently not covered such as NVRA agency, list maintenance communications, NCOA data, and others.

• The SBE must follow the General Records Retention Manual that applies to all state agencies .

• The SBE Records Retention Schedule supplements the General State Records Retention Manual

E-mail retention• This has been a recently debated issue with a special

panel appointed by former Governor Easley to study it in 2008.

• General prior state guidelines was to consider the content of the e-mail and save it or delete it using the same standard for other communications containing such content.

• E-mail of short-term value may be disposed of in conjunction with an approved records retention and disposition schedule, or when they no longer have reference value to the sender or receiver of the message. (“Thanks”, “See you at the meeting at 4”)

It's the Content, Not the Format

• Remember, anything sent or received using e-mail can be a public record. It's the value of the content, not the format, that you should consider. As public records, e-mail messages are subject to the same retention and disposition requirements as the same type of record in another format or medium.

• Some e-mail messages might have administrative value, which means they are useful in day-to-day business, but may not need to be kept permanently. Other messages may have legal, research, or fiscal value that will decide the length of retention based on your agency's schedule.

Watch Out for Confidential and Personal Content

Just because an e-mail message is identified as a public record, it could still contain confidential information that cannot be shared. If you are required to provide records as a result of a public records request, you must securely remove any confidential or privileged information from the records before releasing them. BUT personal expressions in public e-mail is not confidential (just ask the ex-Mayor of Detroit).

When managing your e-mail, ask the following questions of each message:

• Does the message have continuing or permanent value? If yes, keep and maintain according to records retention schedule. If not, once its value ends, delete and purge.

• Who else received this message? Only the primary keeper is responsible for maintaining the record copy. All other copies are reference copies and may be deleted when their reference value ends. See handouts.

• Is it a work in progress (draft)? In most cases, the final version is sufficient for long-term retention. If there is a final version, you can delete prior drafts of that document.

• Are you still unsure about what to do with the message? When in doubt, keep it!

Executive Order No. 150 (under review by Governor Perdue)

Issued the last day of Governor’s Easley’s term.1.Confirms e-mail as public records .2. No deletions of any e-mail prior to 24 hours of

its receipt.3. E-mails backed up daily and kept for 10 years.4. Department of Cultural Resources (Records

Div.) to train state employees , monitor e-mail procedures and random audit agencies as to e-mail policies.

5. Applies to the State, not counties

CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

Should be used by all county offices and executed by board members, director, all staff, and all temporaries with access to confidential information.

The form is of value in these ways:

• 1. It clearly states the importance to the employee of keeping the information confidential. No employee, contractor, or agent could say "I didn't know it was a big deal".

• 2. It gives a board or office a clear strong basis to take action against an employee who willfully violates the policy. The employee knows that compliance with the policy is required as a condition of continued employment.

• 3. It assures the public we are aware of the importance of keeping their confidential information protected and lets the General Assembly know we are concerned as to this important issue.

Employee Confidentiality Form

• Copies are available here at the conference• Can be sent to counties upon request by e-

mail• Important to kept a signed form on those

persons with current access to confidential data

• Plan ahead. If your records need to be retained permanently, then you need to think about what is the best way to do that.

• Active management of records, don’t store and forget.• Index or otherwise arrange for easy retrieval. • Consult with others as needed ( the SBE can help) • Prepare for a disaster or don’t make a disaster by

sending an improper e-mail• Regardless of the effort required, it is our legal

obligation as stewards of public records to protect and preserve them.

Important points to remember:

On-Line ResourcesGovernment Records Branch of North Carolina http://www.records.ncdcr.gov/ Managing Public Records for Local Government Agencieshttp://www.records.ncdcr.gov/LOCALmpr02/index.html

Managing Your Inbox E-mail as a Public Recordhttp://www.records.ncdcr.gov/LOCALmpr02/index.html

Managing Electronic Public Records Recognizing Perils and Avoiding Pitfalls http://www.records.ncdcr.gov/tutorial_erecs_20081027/index.htmlClick on http://www.records.ncdcr.gov/workshops.htm#local for the following

• Disaster Preparedness & Recovery (PowerPoint) • Managing Public Records in North Carolina (PowerPoint) • Scanning Public Records: Laying the Groundwork (PowerPoint) • Scanning and Microfilming (PowerPoint)

Questions?

We are at your service at the SBE

AS ALWAYS………….THANKS FOR ALL YOU DO TO MAKE ELECTIONS WORK IN OUR STATE!!

Don Wright…….(919) 715-5333 or don.wright@ncsbe.gov