WILMINGTON, N.C. (WECT) - Public records can constitute a number of things in North Carolina, from desk calendars to emails, but there are always exceptions to the rules.
In New Hanover County, one such exception to public record law is to mark emails as ‘confidential.’ Once this happens, the public no longer has the right to access those records.
It is understandable for emails that might contain sensitive information or attorney-client communications, which are protected by state law. But in New Hanover County, it’s up to elected leaders and county employees to determine what is confidential.
WECT requested all emails listed as confidential from the county in September of 2021. The request asked for the records to be redacted and provide general information that was not considered confidential.
In December of 2021, the county responded to the request, denying it.
"New Hanover County Legal has determined that the county cannot share emails marked confidential or protected, as they have been deemed confidential by the custodian of record as it relates to one of the county’s confidential protected categories as outlined by General Statute 132-2," New Hanover County Spokeswoman Jessica Loeper said.
However, when WECT requested the number of emails that were deemed confidential, in just a three-month span, the numbers were in the thousands. The county pulled emails from all of the department heads as well as commissioners for a period from June 1 to August 31.
"So, 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," Loeper said.
State law does provide exceptions to the public record law allowing governmental bodies to withhold information that falls within certain categories. However, according to the county, it is up to the senders of the emails to ensure they are not in violation of public record law — and there is nobody ensuring that the system is not abused.
"The county provides training and information to employees, as the custodian of records, on legal compliance with confidential correspondence that fits this criteria. Regarding providing emails, in some cases, applicable law will not permit disclosure of the names, subject lines, and times of certain communications, even with a full redaction of text (i.e., for patients, juveniles, and other social service, and attorney-client communication)," Loeper said.
However, state law makes it a requirement that government bodies separate out the confidential parts of records. Brooks Fuller, Director of the North Carolina Open Government Coalition, said this language is pretty clear.
"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 non-confidential information. If it is necessary to separate confidential from non-confidential information in order to permit the inspection, examination, or copying of the public records, the public agency shall bear the cost of such separation," according to state law.
Mike Tadych, a First Amendment attorney in North Carolina, said this means the county, and any other public body, should be redacting and removing confidential information, and providing things that are not considered confidential.
"There is no provision under the public records law that once it’s marked confidential that that ends the inquiry. The issue is what’s in the email and is it subject to an exemption or not?" he said.
And there are not a lot of things that are considered confidential under state law, he said.
"Generally speaking, anything to and from a public body is a public record under North Carolina law. Obviously, there are things that can contain confidential information," Tadych said.
As far as any safeguards put in place or audits, the county provides employees with training but does not audit emails.
"New Hanover County has a public records request policy that all employees are expected to follow, and they are regularly educated on the process. Employees, as the custodians of records, are responsible for determining what emails should or should not be marked confidential. The county doesn’t perform email audits on all emails (employees send about 250,000 emails a month), but we do host regular training for employees and new hires to teach them about confidential email categories and uses, with an emphasis on best practices so that the category is used appropriately," Loeper said.
WECT will follow this story and see if the county is willing to release information based on the state law, but ultimately, Tadych and Fuller both said public record requests that go unfilled can be fought for in court.