North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
Submit this request

Reply to:

Andrew A. Vanore, Jr.

Administration

(919) 716-6400

January 12, 1999

Mr. R. Glen Peterson General Counsel

N.C. Department of Administration 116 W. Jones Street Raleigh, North Carolina 27603-8003

RE: Advisory Opinion; Public Records; N.C.G.S. § 132-1; Confidentiality of

Department of Administration Documents relating to an Internal Workplace

Assessment Survey

Dear Mr. Peterson:

You request our opinion whether documents generated by the Department of Administration (“DOA”) relating to an internal workplace assessment survey are public records which must be released to the general public upon request. For reasons which follow, all of these documents are public records, and most if not all of the information contained in these public records must be made available for inspection and copying upon request.

THE INTERNAL SURVEY DOCUMENTS

The survey was prepared by the DOA Workplace Assessment Team to obtain DOA employee input as to working conditions within the Department. The information was obtained through a standard questionnaire and answer sheet with an attached comment sheet. The questionnaire, answer sheet and comment sheet were given to all DOA employees. They were encouraged to fill out the form and attach any comments they desired to make. In order to obtain candid answers and to increase participation, answer sheets and comment sheets were completed anonymously.

Mr. R. Glen Peterson January 12, 1999 Page 2

THE LAW

There are two bodies of North Carolina Law that apply here. The first is the Public Records Law which is set forth in Chapter 132 of the General Statutes. The second is Article 7 of Chapter 126 of the General Statutes, which addresses the privacy of state employee information.

A. The Public Records Law

N.C.G.S.
§ 132-1 defines public records as follows: ‘Public record’ or ‘public records’ shall mean all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions.
N.C.G.S.
§ 132-6 provides, in part:

Every custodian of public records shall permit any record in the custodian’s custody to be inspected and examined at reasonable times and under reasonable supervision by any person, and shall, as promptly as possible, furnish copies thereof upon payment of any fees as may be prescribed by law.

It is clear from these statutes that the questionnaire, answer sheets and comment sheets generated by DOA as part of the employee survey are public records since they were produced by an agency of the State in connection with the business of that agency. In the absence of a clear statutory exemption or exception, documents falling within the definition of “public records” must be made available for public inspection. See, News and Observer Publishing Co. v. Poole, 330

N.C.
465 (1992).
B.
Article 7 of Chapter 126 -- Privacy of State Employee Personnel Records

The personnel files of State employees constitute one of the principal exceptions to the Public Records Law. Pursuant to N.C.G.S. § 126-22, information gathered by DOA that relates Mr. R. Glen Peterson January 12, 1999 Page 3

to an employee’s “application, selection or nonselection, promotion, demotion, transfer, leave, salary, suspension, performance evaluation form, disciplinary action and termination of employment wherever located and in whatever form” is not a public record. The release of such information to the public, except for certain “directory” information (name, title, etc.), is prohibited. N.C.G.S. §§ 126-24 and 27.

DISCUSSION

Except to the extent some parts of the questionnaire, answer sheets and comment sheets generated as part of this survey can reasonably be said to relate to the selection, promotion, demotion, discipline, or performance of an identifiable DOA employee within the meaning of

N.C.G.S. § 126-22, these documents are plainly public records. The answer sheets and comment sheets we have examined do not appear to contain any information which would be confidential personnel information within the meaning of N.C.G.S. § 126-22. However, we do not have sufficient information about the purpose for which the survey was conducted or the use DOA intends to make of the information in the survey responses to make that determination. Likewise, we do not have sufficient knowledge of DOA’s structure or organization to determine whether the demographic information contained in the answer sheets could allow a diligent researcher to identify the DOA employee who prepared a particular answer sheet or comment sheet.

In sum, the questionnaire, answer sheets and comment sheets are public records which members of the public are entitled to examine and copy. If DOA has a reasonable basis for concluding that specific parts of the answer sheets and comment sheets are related to the promotion, demotion, discipline or performance of personally identifiable DOA employees, you may redact that specific part from the documents. If there is no reasonable basis for reaching that conclusion, the unredacted documents are public records.

If you have any further questions, please advise.

Very truly yours,

Andrew A. Vanore, Jr. General Counsel

AAVjr/jt Mr. R. Glen Peterson January 12, 1999 Page 4