A primer for economic development professionals
August 24, 2016
At the North Carolina Economic Development Association 2016 Annual Conference, I participated on a panel discussion and presentation regarding public records law requirements in North Carolina and how they affect economic development organizations.
I pointed out to the NCEDA crowd that many economic development professionals, and allies who work with them, often give little thought to public records law. That is, until a situation arises and “bites” them.
In my experience, this can happen when a reporter or citizen makes a public records request for a recruitment file that contains confidential trade secrets which are not marked as such. Or, information is requested that contains communication that would be embarrassing if released.
Professionals working on economic development projects need to be aware of some basics in order to avoid damaging and embarrassing situations.
Basics of NC Public Records Law
G.S. § 132-1
- Any written, photographic, film or other documentary information (hard copy or electronic) which comes into a public agency’s possession is a public record, accessible to the media and the public, if not specifically exempted from disclosure.
- This applies to any local or state agency and elected or appointed officials of those agencies. Under case law in North Carolina, a non-profit economic development organization can be interpreted to be a public agency. Consult an attorney as to this matter.
G.S. § 132-1.2
- Anything that is a “trade secret” can be exempted from disclosure to the public, if it is designated as such at the time of its initial disclosure to a public agency. Economic development professionals should advise representatives of companies being recruited of this and encourage them to designate any information which is a trade secret as such when providing that to an economic development organization. Individual advice can be given as to effective ways to do this.
G.S. § 132-1.11 and 132-6(d)
- Many local economic development organizations conduct a cost-benefit analysis of incentives being provided to a company being recruited.
- Information on this analysis and any other information on the recruitment effort can be withheld from the public for so long as the “release of those records would frustrate the purpose for which they were created,” which is interpreted to mean as long as the recruitment effort is not yet concluded.
- This does not apply to general economic development policy information.
- This information must be released within 25 days after the project is announced, except that confidential trade secretes may continue to be withheld.
G.S. § 132-3
- Do not destroy any public records in your agency’s possession.
- It is a misdemeanor offense to do so.
G.S. § 132-5
- A public record request must be complied within 21 days.
- Failure to do so is a misdemeanor offense.
- But require that any public record request be in writing. Comply with that request, but nothing beyond that which is requested.
G.S. § 132-6
- A member of the public can inspect public records in a public agency’s office at reasonable times and under reasonable supervision.
- A person requesting access to public records cannot be asked why they are requesting those records or their motivation in doing so.
G.S. § 132-6.2(b)
- A public agency can charge a reasonable fee for copies or certified copies. Always impose and collect these fees.
- If “extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency” will be required to comply with an information request the agency can charge actual costs (including labor costs) of complying with the request. Always impose and collect these costs.
Ernie Pearson is former Assistant Secretary for Economic Development in North Carolina. His broad experience allows him to understand and coordinate all legal issues connected with siting a new facility or expanding an existing one. After a move or expansion, he provides continuing assistance on various legal matters.