If you make public records requests in North Carolina, you are undoubtedly familiar with N.C. Gen. Stat. § 132-6(a), which requires a public body to furnish responsive records “as promptly as possible.” You have also likely experienced firsthand that “as promptly as possible” can mean different things to the requester and to the public body records custodian. How did we end up with this wording, and what have our courts said about public bodies that delay, delay, delay? What can you do to push back?
The majority of states have public records laws that give custodians a set number of days to respond to records requests and/or produce records; North Carolina does not, and that puts us in the significant minority along with a small handful of states that also have an unspecified timeframe (including Alabama, Alaska, Arizona, Colorado, Florida, Iowa, Minnesota, Montana, North Dakota, Oklahoma, Texas and Wisconsin). Other states’ timeframes vary widely. For example, public bodies in Georgia and Idaho have three days to respond to a request. Connecticut allows four and ten business days, depending on the nature of the request. Georgia and Idaho allow three days. Michigan allows five. Massachusetts allows ten. Delaware and D.C. allow 15 business days. Maryland is 30 days.
Some states have other remedies for citizens whose requests are being denied, like attorney general opinions in North Dakota or the Office of Open Records in Pennsylvania. However, when a North Carolina public body fails to respond in a “prompt” amount of time, a requester’s only remedy is filing a lawsuit.
The language in our statute dates back to 1995, when the North Carolina legislature undertook an overhaul of the public records law. Several groups, including the League of Municipalities and the Association of County Commissioners, did not want any response timeframe written into the law. A driving concern was that it was unfairly burdensome to give pubic bodies the same deadline to produce, say, a one-page contract or thousands of documents that may need to be vetted for confidential information. Another concern centered on the reasonable ability to respond; some public bodies have dedicated public records staff, while others do not, so reasonable ability may vary.
The bill’s sponsors, who included then State Representative George Miller and then-state-Senator Roy Cooper, accepted the “as promptly as possible” language as a compromise agreed to by the lobbyists for the legislation’s stakeholders, with the understanding that some requests would be able to be fulfilled quickly and others would take time. Our state courts were entrusted with the role of ultimate arbiter on a case by case basis to determine whether a public body had worked to deliver the records “as promptly as possible.”
While we at the NCPA hotline contend that “as promptly as possible” usually means hours or days, the anecdotal reality is that many public bodies in North Carolina are taking months – and sometimes years – to respond to requests. Some requests never garner a response at all. This is certainly not what the legislature intended.
Our Attorney General and appellate courts have been mostly silent on this subject. In 2016, a group of news media organizations sued then-North Carolina Governor Pat McCrory, claiming that the administration was intentionally delaying or denying access to public records and imposing unreasonable and unjustified fees and charges in connection with those requests. The appeals court never reached those issues before the case settled.
Luckily, lower courts have begun weighing in on the issue. In 2021, a Columbus County trial court held that an unjustified one-month delay in production of records was tantamount to a denial and required not only that the records be produced, but also that the sheriff was responsible for paying the newspapers’ full attorney fees. “The plaintiffs have been denied access to public records in the sense that an unnecessary, undue, and unreasonable delay in providing them amounts to a substantial failure to comply with the Public Records Law.” The News Reporter Co., et al. v. Jody Greene, Case No. 20 CVS 1147, Columbus County, North Carolina (Feb. 19, 2021). The sheriff did not appeal and paid $32,287.69 in costs and fees to the plaintiffs. Lower court opinions like these aren’t as easy to find because they aren’t always published in the same way that an appellate court decision is published, but they can serve as excellent cautionary tales for custodians who are not acting promptly. (If you want a copy of the Columbus County orders to share with a stubborn public agency, you can download them HERE and HERE).
So what can you do? To start, you can tell the public body that our courts have said that an unreasonable delay in producing the records has the same effect as if they were to deny the request outright. You can remind them that if you have to file a lawsuit, they could be responsible for your attorney fees on top of their own. And you can remind them that the courts are required to construe the operative provisions of the Public Records Law broadly, and in favor of requesters.
Some public bodies have a policy of responding to public records requests in the order they are received, in a kind of “pipeline” method. Under this type of policy, a request for a simple one-page document that could be fulfilled almost instantly can take weeks or months if it comes in after a request for thousands of emails. If you run into this, you can remind the custodian that this type of policy does not comply with N.C. Gen. Stat. § 132-6(a), since it prevents the public body from responding as promptly as possible.
Don’t be shy about reminding a custodian about your records request if they haven’t responded to you. Direct them to N.C. § 132-9, which allows a prevailing party to recover attorney fees at the court’s discretion. Assuming what you have requested is public record, you are entitled to these documents and the custodian is legally obligated to give them to you “as promptly as possible.”