HomeMy WebLinkAboutP-0350 - Citizens Access To Public Records 04-19-1988-5.' ~ ~ ' ~
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POLICY FOR INSERTION INTO THE POLICY MANUAL
MEETING DATE: April 19, 1988
EFFECTIVE DATE: A ril 19, 1988
NUMBER' P•0350
REVISIONS: Policy 0420
POLICY'
CITIZEN ACCESS TO PUBLIC RECORDS
That all copies of documents generated by and for the County to
include all major reports, surveys and studies; copies of
which will be retained in the County Commissioners meeting
room of the administrative building. These copies may be checked
out of the Board of County Commissioners office and read on site.
If copies are requested by the public of any documentation, such
copies will be made available within three working days of the
request.
At present there are no charges for copies made for the public.
The Manager is having the Director of Purchasing and Central
Services determine the practices of other local governments in our
surrounding area and we will recommend a schedule of fees at a
later meeting in May.
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~PP~,OVED MAY 2. 1988
MINUTES
ORANGE COUNTY BOARD OF COMMISSIONERS
REGULAR MEETING
APRIL 19, 1988
The orange County Board of Commissioners met in regular session on
Tuesday, April i9, 1988 in the courtroom of the old Post Office, Chapel
Hill, North Carolina.
BOARD MEMBERS PRESENT: Chair Shirley E. Marshall and Commissioners
Moses Carey, Jr., Stephen Halkiotis, John Hartwell and Don Wfllhoit.
ATTORNEY PRESENT: Geoffrey Gledhill.
STAFF PRESENT: County Manager John M. Link, Jr., Assistant County
Managers William T. Laws and Albert Kittrell, Planner Gene Bell, Recreation
and Parks Director Mary Anne Black, Clerk to the Board -Beverly A. Blythe,
Planning Director Marvin Collins, Director of Housing and Community
Development Tara Fikes, Finance Director Ellen Liston, and Tax Assessor
Kermit Lloyd.
A. BOARD AND MANAGERS COMMENTS
Chair Marshall added to the agenda two proclamations under that
category.
County Manager John M. Link added to the agenda as G8 a discussion on
the proposed agreement between oWASA and Chatham County. He deleted from
the Consent Agenda F1 - Board of Elections Tabulators and F5 Health Yourself
Policy Statement.
• B. PUBLIC COMMENTS
1. MATTERS ON THE ~~tINTED AGENDA
None
2. MATTfiRB NOT ON THE PRINTED AGENDA
None
C. ES
Motion was made by Commissioner Hartwell, seconded by Coaauaissioner Carey
to approve the March 15, 1988 minutes as corrected.
VOTE: UNANIMOUS.
Motion was made by Commissioner Hartwell, s®conded by Commissioner
Haikiotis to approve the mimttes far April 4, 1988 as corrected.
VOTE: UNANIMOUS.
Chair Shirley E. Marshall read the public charge.
PUBLIC HEARING
** AND LAN
Recreation and Parks Director Mary Anna Black made the presentation.
She seated that the Board of Commissioners voted on March 15 to delete the
greenways element of the Plan. The other three elements are being presented
at this time for public comments. She presented a elide presentation which
gave an overview of the process that was followed in developing the Plan.
she used two maps to explain the differences between district parks and
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was approved by the Planning Board February 1, 1988.
Commissioner Willhoit expressed a problem with accepting such a small
The issue of what is meant by greenways need to be addressed.
Chair Marshall stated that the procedure for accepting parcels of land
is provided far in the Joint Land Use Plan. Concerns have been expressed
about the area around Neville and Phils Cresk and she suggested that this
Article in the Joint Land Use Plan be reviewed. She suggested that this
small parcel could be used as a conservation sassement.
Mary Anne Black explained that in the Land use Pian that for areas
designated for recreation and/or open space required through the subdivision
ordinance that no site sapecific planning had been done for those properties
and it was the intent of the Land Use Plan to indicate potential areas for
development or nondevelopment depending on the sensitivity of the property.
Commissioner Willhoit noted that the stream buffer will protect the
streams and if this property is part of the stream buffer, it would not be
logical to have it in county ownership. Ha indicated there should be a
minimum parcel size before the County accepts a parcel of land.
The Board agreed that they would accept this parcel in accordance with
the ordinance and asked that the ordinance be reviewed for amendments.
Marvin Collins explained the intent of the ordinance with respect to the
greenways system of trails.
Motion was made by commissioner Hartwell, .seconded by Commissioner
galkiatis to accept the 7,023 sq. ft. of land dedicated to Orange County.
VOTE: UNANIMOUS.
4. JOINT PLANNING AREA PUBLIC HEARING
The Board discussed the rescheduling of the April 13 Joint Planning
Area Public Hearing that was canceled. It was decided that two passible
dates would be checked with elected officials from Chapel Hill and Carrboro
and considered at the next meeting.
'~' 5. PUBLIC 12ECORDS y -" f 9~ ~~
Motion was made by Commissioner Halkiotis, seconded by Commissioner
Hartwell to approve the following policy as recommended by the County
Managers
(1) That all copies of documents generated by and for the County to
include all mayor reports, surveys and studies. Copies of such
material will be retained in the County Commissioners meeting
room of the administrative building. Thee~e copies may be
checked out of Board of County Commissioners office and read on
site.
(2) If copies are requested by the public of any documentation such
copies will be made available within three working days of the
request.
VOTE: UNANIMOUS.
b . EI+iERGENCY SHELTER GRANT
Tara Fikes: explained that the grants will bs awarded to local
governments to help improve the quality and avnilability of emergency
shelters and serviceB for the homeless in their communities. Inter-Faith
Council hoe agreed to provide the matching resources necessary. The
application will request $5,000 which is the maximum allowable.
Motion was pads by Commissioner Hartwell, seconded by Commissioner
Halkiotis to authorize the submission of an Emergency Shelter Grant
application and authorize the Chair to sign the Application an behalf of the
Board.
VOTE: UNANIMOUS.
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ORANGE COUNTY
y HILLSBOROUGH
NORTH CAROLINA
arecu~e¢ ~s (~ieE
MEMORANDUM
T0: All Department Heads
FROM: John M. Link
DATE: April 22, 19$$
RE: CITIZEN ACCESS TO PUBLIC RECORDS
~stari~is~~ 1 X52
The Board of Commissioners on April 19 approved a procedure
to be followed for providing access to public documents. I have
attached a copy of the agenda item and attachments for you to read.
Please send to the Board of Commissioners' Office copies of
any major,. reports, surveys or studies that were generated by and for
the County. These will be catalogued and retained in the Board of
Commissioners conference/library room for the public to check out
and read. on site.
There is available from the Institute of Government for
department heads to purchase a new publication entitled "Interpreting
North Carolina's Public Records Law" written by David M. Lawrence.
Please let my office know if you have any specific questions.
Thank you.
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062
ORANGE COUNTY
BOARD OF COMMISSIONERS
Action Ag nda
Item No. ~~
ACTION AGENDA ITEM ABSTRACT
Meeting Date: APRIL 19, 1988
SUBJECT: PUBLIC RECORDS
DEPARTMENT: COUNTY MANAGER PUBLIC HEARING: Yes X No
ATTACHMENT(S):. INFORMATION CONTACT: MANAGER'S
OFFICE,X501
GEl`iERAL STATUTES REFERRING TO TELEPHONE NUMBER:
PUBLIC RECORDS Hillsborough - 732-8181
Chapel Hill - 968-4501
Mebane - 227-2031
Durham - 688-7331
PURPOSE: To provide Board with preliminary report on Manager's proposed
approach in providing access to public documents provided by
and for Orange County.
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BACKGROUND: North Carolina General Statute Section 132-1 defines public
records as meaning all "documents,-papers, letters, maps,
books, photographs, films, sound recordings, 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 in North Carolina
government or its subdivisions." Public records do not
include written communications and copies of .those communica-
tions "made within the scope of the attorney-client relation-
ship by any attorney-at-law serving the governmental body
concerning any claim against, or on behalf of the County, or
concerning the prosecution, defense, settlement or litigation
of any judicial action, or any administrative or other type of
proceeding to which the County is a party, or by which it is
or may be directly affected."
In addition to the accessibility referenced above, privileged
information personnel files of employees, former employees or
applicants for employment to the extent of the privilege
• should not be disclosed. N. C. General Statute 153A-98 covers
the employee personnel records exception to the general rule
that all County documents are public records.
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RECOMMENDATION(S) : ,~••``'''~a
Manager makes the following preliminary recommendations:
1) That all copies of documents generated by and for the
County to include all major reports, surveys and studies.
Copies of which will be retained in the County Commis=
sinners meeting room of the administrative building.
These copies may be checked out of Board of County Commis-
sioners office and read on site.
2) If copies are requested by the public of any documentation
such copies will be made available within three working
days of the request.
At present there are no charges for copies made for the
public. The Manager is having the Director of Purchasing and
Central Services determine the practices of other local
governments in our surrounding area and we will recommend on
any schedule of fees at a later meeting in May.
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132-1 CH. l3'l. PUBLIC RECORDS
Chapter 132,
Public Records.
Q 6 ~ ~ 132-1
sec. sec.
132.1. "Public records" defined. 132-8. Assistance by and to Depart-
132.1.1. Confidential communications ment of Cultural Re-
by legal counsel to public
board or agency; not public sources.
records. 132-8.1. Records management program
132-2. Custodian designated. administered by Depart-
132.3. Destruction of records regu- ment of Cultural Re-
lated. sources; establishment of
132-4. Disposition of records at end of standards, procedures, etc.;
Q official's term. ~ surveys.
132.5. Demanding custody. 132-~.2. Selection and preservation of
132-5.1. Regaining custody; civil reme- records considered eseen-
dies. tial; makin or deai
132.6. Inspection and examination of B gnation
records, of preservation duplicates;
- 132.7. Keeping records in safe places; force and effect of dupli-
copying or repairing; certi- cafes or copies thereof.
Pied copies. 132-9. Access to records.
$ 132-1. "Public records" defined.
"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, arti-
facts, or other documentary material, regardless of physical form or
characteristics, made or received pursuant to law or ordi~iance in
connection with the transaction of public business by any agency of
North Carolina government or its subdivisions. Agency of North
Carolina government or its stddivisions shall mean and include
every public office, public officer or official (State or local, elected or
appointed), institution, board, commission, bureau, council, depart-
ment, authority or other unit of government of the State or of any
county, unit, special district or other political subdivision of govern-
ment. (1935, c. 265, s. 1; 1975, c. 787, s. 1.)
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Local ModiScation. -- Henderson:
1985 fReg. Sess., 1986), c. 962, s. 1; Clay,
Durham, Graham, Jackson, Macon,
Polk, Transylvania: 1985 (Reg. Sess.,
1986), c. 969; McDowell: 1985 (Reg.
Sess., 1986),. c. 892, s. 1; Swain: 1985
(Reg. Sess., 1986), c. 923, s. 1. (as to
Chapter 132) city of Durham: 1985, c.
?27.
Cross References. -- As to records of
education agencies, see 6 115C-3.
Legal Periodicals. -For comment
on public access to government-field
records, see 55 N.C.L. Rev. 1187 (1977).
For a note on the public's access to
public records, see 60 N.C.L. Rev. 853
(1982).
For survey of 1981 administrative
law, see 60 N.C.L. Rev. 1165 (1982).
CASE NOTES
i
Chapter Contemplates Disclosure
as Well as Storage. - A presumed leg-
islative intent to mandate the extensive
preservation of public records prescribed
by this Chapter, with storage at public
expense, but to which the public is de-
nied access, is untenable. Preservation
for its own sake, absent access, would be
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13`Z-1 CH. 132. PUBLIC RECORDS ~ § 13`l-1
un absurdity. Advance I'ublica(ions, Inc.
c. City of Elizabeth City, 53 N.C. App.
~i04, '?81 S.E.'ld 69 119ri I ).
The phrase "pursuant to law or or-
dinance in cunnection with the
transaction of public business"
should include, in addition to those
records required by law, those records
that are kept in carrying out lawful du-
ties. News & Observer Publishing Co. v.
Wake County Hosp. Sys., 55 N.C. App.
1, 284 S.E.2d 542 11981), cert. denied,
305 N.C. 302, 291 S.E.2d 151, appeal
dismissed and cert. denied, 459 U.S. 803,
103 S. Ct. 26, 74 L. Ed. 2d 42 (1982).
"Agency of North Carolina govern-
ment or its subdivisions". - The
phrase "agency of North Carolina gov-
ernment or its subdivisions" in this sec-
tion need be construed only upon the
plain meaning of this section and in the
context of the public records statutes.
News & Observer Publishing Co. v.
Wake County Hosp. Sys., 55 N.C. App.
1, 284 S.E.2d 542 (19811, cert. denied,
305 N.C. 302, 291 S.E.2d 151, appeal
dismissed and cert. denied, 489 U.S. 803,
103 S. Ct. 26, 74 L. Ed. 2d 42 (198') i.
Wake County Hospital System is
an agency of the county under the
North Carolina public records statutes.
News & Observer Publishing Co. v.
Wake County Hosp. Sys., 55 N.C. App.
1, 284 S.E.2d 542 (1981), cert. denied,
305 N.C. 302, 291 S.E.2d 151, appeal
dismissed and cert. denied, 459 U.S. 803,
103 S. Ct. 26, 74 L. Ed. id 42 (1982).
By virtue of the definitions in
?;~~' 143-318.10(b) and 159.39;a), the
Wake County Hospital System is a "pub-
lic body" that must, by law, record set-
llemenl terrtis considered in executive.
sessions. The public has the right to
know the terms of seltlements made by
the system in actions for wrongful ter-
minations of its agreements, since the
funds from which the seltlements were
paid must be considered the county's
funds. News & Observer Publishing Co.
v. Wake County Hoap. Sys., 55 N.C.
App. 1, 284 S.E.2d 542 (1981), cert. de-
nied,305 N.C. 302,291 S.E.2d 151,ap-
peal dismissed and cert. denied, 459 U.S.
803, 103 S. Ct. 26, 74 L. Ed. 2d 42
(1982).
S.B.I. records arq, not public
records and access to them is not avail-
able under the Public Recgrds Act. Ac-
cess to S.B.I. records is controlled en-
tirely by ~ 114-15. News & Observer
Publishing Co. v. State ex rel. Starling,
312 N.C. 276, 322 S.E.2d 133 (1984).
Letter from Engineer Consulting
for City. - A letter received by the
manager of defendant-city from a con-
sulting engineer whom defendant-city
employed to inspect construction work
on additions and modifications to its
water treatment plant is a public record
subject to disclosure. Advance Publica-
tions, lnc. v. City of Elizabeth City, 53
N.C. App. 504, 281 S.E.2d 69 (1981).
Cited in State v. Bellar, 16 N.C. App.
339, 192 S.E.2d 86 (1972); Carnahan v.
Reed, 53 N.C. App. 589, 281 S.E.2d 408
(1981); Housing Auth. v. Montgomery,
55 N.C. App. 422y286 S.E.2d 114 (1982);
North Carolina State Bd. of Registration
for Professional Eng'rs & land Sur-
veyors v. FTC, 615 F. Supp. 1155
(E.D.N.C. 1985).
OPINIONS OF ATTORNEY GENERAL
Police Arrest and Disposition
Records Subject to Public =:xamina-
tion. -See opinion of Attorney General
to Mr. Samuel M. Moore, 41 N.C.A.G.
40? ~ 1971).
Textbook Lists of State Universi-
ties Are Public Records. -See opin-
ion of Attorney General to Mr. J.D.
Wright, North Carolina State [Jniver-
sity at Raleigh, 41 N.C.A.G. 199 X1971).
Applications for Licensure as
Speech and Language Pathologists
and Audiologists Are Public
Records. -See opinion of Attorney
General to Mariana Newton, Phd.,
Chairman, Board of Examiners for
Speech and Language Pathologists and
Audiologists, 45 N.C.A.G. 188 11976).
Municipal Records. and Papers,
Such as Budgets, Bank Statements,
Tax Levies, Utility Accounts, Min-
utes of Meetings, etc., Are Public
Records. -See opinion of Attorney
General to Honorable R.L. Davis, 43
N.C.A.G. 274 (1973).
Sheriff a department investigative
reports and memoranda concerning
investigation o[ crimes are not pub-
lic records within the sense of Chapter.
132 and are not thereby subject to public
inspection. Opinion of Attorney General
to Honorable J. Hubert Haynes, 44
N.C.A.G. 340 (1975).
Copies of Forms Maintained by
Law Enforcement Officers Are Not
Public Records. -The copy of Corm
HP-332 (affidavit form) maintained by
the arresting officer which is completed
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132-1.1 CH. 132. PUB1.lC RECt)RUS O ~ ~ ~ 132-1.1
when a person refuses to take a chemical
test to determine alcoholic content of the
blood is not a public record and subject
to inspection. See opinion oC Attorney
General to Barbara Smith, Assistant
Secretary. Department of Crime Control
and Public Safety, 48 N.C.A.G. 63
(1978).
The copy of HP-332A (rights of person
requested to take chemical test to deter-
mine alcoholic content of blood), main-
tained by arresting officer is not a public
record and subject to inspection. See
opinion of Attorney General to Barbara
Smith, Assistant Secretary, Department
of Crime Control and Public Safety, 48
N.C.A.G. 63 (1978).
The copy of the alcohol influence re-
port (HP-327) which is maintained by
the arresting officer and the copy of
which is maintained at troop headquar-
ters is not a public record and subject to
inspection. See opinion of Attorney Gen-
eral to Barbara Smith, Assistant Secre-
tary, Department of Crime Control and
Public Safety, 48 N.C.A.G. 63 (1978).
The departmental copy of the N.C. un-
iform traffic ticket and complaint, which
is submitted by a highway patrolman to
the district first sergeant who transmits
it to the Traffic Record Section of the
Division of Motor Vehicles, is not a pub-
lic rernrd and subject to inspection dur-
ing the time it is maintained at the pa-
troldistrict headquarters. See opinion of
Attorney General to Barbara Smith, As-~
sistant Secretary, Department of Crime
Control and Public Safety, 48 N.C.A.G.
63 (19781.
The enforcement division copy of the
N.C. uniform trntlic ticket and cu:n•
plaint, ~chich is maintained by the offi-
cer issuing the complaint and includr=
his notes and other evidence, i~ not a
public record and subject to inspection
prior to trial of the offense charged in
the complaint. See opinion oC Attorney
General to Barbara Smith, Assistant
Secretary, Department of Crime Control
and Public Safely, 48 N.C.A.G. 63
(1978).
The enforcement division copy of the
N.C. uniform traffic ticket and com-
pl~int is not a public record and subject
to ins~tion in the patrol district head-
quart rs after the trial oC the offense
charged in the complaint. See opinion of
Attorney General to Barbara Smith, As-
sistant Secretary, Department of Crime
Control and Public Safety, 48 N.C.A.G.
63 (1978).
The chemical test operator's log
(DHS-2069) is not a public record and
subject to inspection while in the posses-
sion of the chemical test operator. See
opinion of Attorney General to Barbara
Smith, Assistant Secretary, Department
. of Crime Control and Public Safety, 48
N.C.A.G. 63 (1978).
The breathalyzer operational check-
list (DHS-2012) which is completed and
maintained by the breathalyzer operator
is not a public record and subject to in-
spection. See opinion of Attorney Gen-
era! to Barbara Smith, Assistant Secre-
tary, Department of Crime Control and
Public Safety, 48 N.C.A.G. 63 (19781.
§ 132-1.1. Confidential communications by legal
counsel to public .board or agency; not
public records.
Public records, as defined in G.S. 132-1, shall not include written
communications (and copies thereof') to any public board, council,
commission or other governmental body of the State or of any
county, municipality or other political subdivision or unit of gov-
ernment, made within the scope of the attorney-client relationship
by any attorney-at-law serving any such governmental body, con-
cerning any claim against or on behalf of the governmental body or
the governmental entity for which such body acts, or concerning the
prosecution, defense, settlement or litigation of any judicial action,
or any administrative or other type of proceeding to which the gov-
ernmental body is a party or by which it is or may be directly
affected. Such written communication and copies thereof shall not
be open to public inspection, examination or copying unless specifi-
cally made public by the governmental body receiving such written
communications; provided, however, that such written communica-
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132-2 CH. 132. PUHLIC RECORDS § 132-4
tions and copies thereof shall become public records as defined in
G.S. 132-1 three years from the date such communication was re-
ceived by such public board, council, commission or other govern-
mental body. (1975, c. 662J
Legal Periodicals. -For survey of
1981 administrative law, see 60 N.C.L.
Rev. 1165 (1982).
CASE NoTEs
F,x.
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Cited in News & Observer Publishing
Co. v. Wake County Hap. Sys., 55 N.C. ..
App. 1, 284 S.E.2d 542 (1981).
t,
§ .232-2. Custodian designated.
The public official in charge of an office having public records
shall be the custodian thereof. (1935, c. 265, s. 2.)
§ 132-3. Destruction of records regulated.
No public official may destroy, sell, loan, or otherwise dispose of
any public record, except in accordance with G.S. 121-5, without the
consent of the Department of Cultural Resources. Whoever unlaw-
fully removes a public record from the office where it is usually
kept, or alters, defaces, mutilates yr destroys it shall be guilty of a
misdemeanor and upon conviction fined not less than ten dollars
($10.00) nor more than five hundred dollars ($500.00). (1935, c. 265,
s. 3; .1943, c. 237;1953, c. 675, s. 17; 1957, c. 330, .2;1973, c. 476, s.
48.)
Cross References. -For section fur-
ther regulating destruction of records,
see 3 121-5.
CASE NOTES
Applied in State v. West, 31 N.C. Cited in State v.l3ellar, 16 N.C. App.
App. 431, 229 S.E.2d 826 (1976); State v. 339, 192 S.E.2d 86 (1972).
Caldwell, 53 N.C. App. 1, 279 S.E.2d 852
11981).
§ 132-4. Disposition of records at end of off'icial's
term.
Whoever has the custody of any public records shall, at the expi-
ration of his term of office, deliver to his successor, or, if there be
none, to the Department of Cultural Resources, all records, books,
writings,, letters and documents kept or received by him in the
transaction of his official business; and any such person who shall
refuse or neglect for the space of 10 days after request made in
writing by any citizen of the State to deliver as herein required
such public records to the person authorized to receive them shall
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132-5 CN. 132. PUBLIC RECI)Itl)S ~ 132-5.1
• • be guilty of a misdemeanor and upon conviction imprisoned for a
term not exceeding two years or fined not exceeding one thousand
dollars ($1,000) or both. (1935, c. 265, s. 4; 1943, c. 237; 1973, c. 476,
s. 48; 1975, c. 696, s. 1.)
§ 132-5. Demanding custody.
Whoever is entitled to the. custody of public records shall demand
them from any person having illegal possession of them, who shall
forthwith deliver the same to him. If the person who unlawfully
possesses public records shall without just cause refuse or neglect
for 10 days after a request made in writing by any citizen of the
• • State to deliver such records to their lawful custodian, he shall be
guilty of a misdemeanor and upon conviction imprisoned for a term
not exceeding two years or fined not exrceeding one thousand dollars
($1,000) or both. (1935, c. 265, s. 5; 1975, c. 696, s. 2.)
§ 132-5.1. Regaining custody; civil remedies.
(a) The Secretary of the Department of Cultural Resources or his
designated representative or any public official who is the custo-
dian of public records which are in the possession of a person or
agency not authorized by the custodian or by law to possess such
public records may petition the superior court in the county in
which the person holding such records resides or in which the mate-
rials in issue, or any part thereof, are located for the return of such
public records. The court may order such public records to be deliv-
ered to the petitioner upon finding that the materials in issue are
public records and that such public records are in the possession of
a person not authorized by the custodian of the public records or by
law to possess such public records. If the order of delivery does not
receive compliance, the petitioner may request that the court en-
force such order through its contempt power and procedures.
(b) At any time after the filing of the petition set out in subsec-
tion (a) or contemporaneous with such filing, the public official
seeking the return of the public records may by ex pane petition
request the judge or the court in which the action was filed to grant
one of the following provisional remedies:
(1) An order directed at the sheriff commanding him to seize
the materials which are the subject of the action and de-
. • liver the same to the court under the circumstances herein-
after set forth; or
(2) A preliminary injunction preventing the sale, removal, dis-
posal or destruction of or damage to such public records
pending a final judgment by the court.
(c) The judge or court aforesaid shall issue an order of seizure or
grant a preliminary injunction upon receipt of an affidavit from the
petitioner which alleges that the materials at issue are public
records and that unless one of said provisional remedies is granted,
there is a danger that such materials shall be sold, secreted, re-
. moved out of the State or otherwise disposed of so as not to be
forthcoming to answer the final judgment of the court respecting
. the same; or that such property may be destroyed or materially
damaged or injured if not seized or if injunctive relief is not
i granted.
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131-6 cli. 132. rusLlc llt•.coxvs ~ 132-7
id) The aforementioned order of seizure or preliminary injunc-
tion shall issue without notice to the respondent and without the
posting of any bond or other security by the petitioner. (1975, c.
787, s. 2.)
CASE NOTES
Public records and documents are
the property of the State and not of
the individual who happens, at the
moment, to have them in his posses-
sion; and when they are deposited in the
place designated for them by law, there
they must remain, and can be removed
only under authority of an act of the leg-
islature and in the manner and for the
purpose designated by law. State v.
Nest, 31 N.C. App. 431, 229 S.E.2d 826
(1976), affd, 293 N.C..18, 235 S.E.2d 150
(1977).
Since ownership of bills of indict-
ment is in the State, it cannot be dis-
posed of except as provided by law.
It cannot be forfeited through the over-
sight, carelessness or even intentional
conduct of any of the agents of the State.
Thus, the documents in question left the
custody of the court in an unlawful man-
ner and legal title thereto cannot pass to
the individual who happena;~ at the
moment, to have them in his possession.
State v. West, 31 N.C. App. 431,.229
S.E.2d 826 (1976), affd, 293 N.C. 18, 235
S.E.2d 150 (197?}.
§ .132-6. Inspection and examination of records.
Every person having custody of public records shall permit them
to be inspected and examined at reasonable times and under his
supervision by any person, and he shall furnish certified copies
thereof on payment of fees as prescribed by law. (1935, c. 265, s. 6.)
Local Modification. -New Hano-
ver: 1981, c. 960; city of Gastonia: 1985
Reg. Sess., 1986), c. 902, s. 8.
Legal Periodicals. -For comment
on public access to government-held
records, see 55 N.C.L. Rev. 1187 (1977).
CASE NOTES
"Any Person" Includes Corpora-
tion. -The General Assembly did not
intend to exclude corporate entities from
the scope of the phrase "any person" in
For a note on the public's access to
public records, see 60 N.C.L. Rev. 853
(1982).
~.
this section. Advance Publications, Inc.
v. City of Elizabeth City, 53 N.C. App.
504, 281 S.E.2d 69 (1981).
§ 132-7. Keeping records in safe places; copying or
repairing; certified copies.
Insofar as possible, custodians of public records shall keep them
in fireproof safes, vaults, or rooms fitted with noncombustible mate-
rials and in such arrangement as to be easily accessible for conve-
nient use. All public records should be kept in the buildings in
which they are ordinarily used. Record books should be copied or
re~aired, renovated or rebound if worn, mutilated, damaged or diffi-
cu.t to read. Whenever any State, county, or municipal records are
in need of repair, restoration, or rebinding, the head of such State
agency, department, board, or commission, the board of county com-
missioners of such county, or the governing body of such municipal-
ity may authorize that the records in need of repair, restoration, or
6
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t N l ~ ~t -.. •.1~: ...
::7
dir
sw~.
wer-
>nal
;ate.
:the
nsn-
ss to
the
lion.
229
. 235
~3.
hern
his
spies
~. 6.)
!ss to
~, 853
~;, Inc.
App.
or
them
•nate-
onve-
gs in
ed or
diffi-
s are
Mate
com-
cipal-
on, or
•
LJ
•
o~~
132-8 CH. 132. PUBLIC RECORDS § 132-6.1
rebinding be removed from the building or office in which such
records are ordinarily kept, for the length of time required to
repair, restore, or rebind them. Any public official who causes a
record book to be copied shall attest it and shall certify on oath that
it is an accurate copy of the original book. The copy shall then ha~•e
the force of the original. (1935, c. 265, s. 7; 1951, c. 294.?
§ 132-8. Assistance by and to Department of Cul-
tural Resources.
The Department of Cultural Resources shall have the right to
examine into the condition of public records and shall give advice
• and assistance to public officials in the solution of their problems of
preserving, filing and making available the public records in their
custody. When requested by the Department of Cultural Resources,
public officials shall assist the Department in the preparation of an
inclusive inventory of records in their custody, to which shall be
- attached a schedule, approved by the head of the governmental unit
or agency having custody of the records and the Secretary of Cul-
tural Resources, establishing a time period for the retention or dis-
posal of each series of records. Upon the completion of the inventory
and schedule, the Department of Cultural Resources shall (subject
to the availability of necessary space, staff, and other facilities for
such purposes) make available space in its Records Center for the
filing of semicurrent records so scheduled and in its archives for
noncurrent records of permanent value, and shall render such other
assistance as needed, including the microfilming o~ records so
scheduled. (1935, c. 265, s. 8; 1943, c. 237; 1959, c. 68, s. 2; 1973, c.
476, s. 48.)
•
•
;~
§ 132-8.1. Records management program adminis-
tered by Department of Cultural Re-
sources; establishment of standards,
procedures, etc.; surveys.
A records management program for the application of efficient
and economical management methods to the creation, utilization
maintenance, retention, preservation, and disposal of officia~
records shall be administered by the Department of Cultural Re-
sources. It shall be the duty of that Department, In cooperation with
and with the approval of the Department of Administration, to
establish standards, procedures, and techniques for effective man-
agement of public records, to make continuing surveys of paper
work operations, and to recommend improvements in current
records management practices including the use of space, equip-
ment, and suppplies employed in creating, maintainin ,and servic-
ing records. It shall be the duty of the head of each Mate agenc}~
and the governing body of each county, municipality and other
subdivision of government to cooperate with the Department of
Cultural Resources in conducting surveys and to establish and
maintain an active, continuing program for the economical and
efficient management of the records of said agency, county, munici-
pality, or other subdivision of government. (1961, c. 1041; 1973, c.
476, s. 48.?
071
132-8.2 CH. 132. PUBLIC RECORDS ~ 132.9
132-8.2. Selection and preservation of records
considered essential; making or desig-
nation of preservation duplicates; force
and effect of duplicates or copies
thereof.
In cooperation with the head of each State agency and the gov-
erning body of each county, municipality, and other subdivision of
government, the Department of Cultural Resources shall establish
and maintain a program for the selection and preservation of public
records considered essential to the operation of government and to
the protection of the rights and interests of persons, and,:within the
limitations of funds available for the purpose, shall make Qr cause
to be made preservation duplicates or designate as preservation
duplicates existing copies of such essential public records. Preserva-
tion duplicates shall be durable, accurate, complete and clear,'and
such duplicates made by a photographic, photostatic, microfilm,
micro card, miniature photographic, or other process which accu-
rately reproduces and forms a durable medium for so reproducing
the original shall have the same force and effect for all purposes as
the original record whether the original record is in existence or
not. A transcript, exemplification, or certified copy of such preser-
vation duplicate shall be deemed for all purposes to be a transcript,
exemplification, or certified copy of the original record. Such preser-
vation duplicates shall be preserved in the place and manner of
safekeeping prescribed by the Department of Cultural Resources.
(1961, c. 1041; 1973, c. 476, s. 48.)
§ 132-9. Access to records.
1.
Any person who is denied access to public records for purposes of
inspection, examination or copying may apply to the appropriate
division of the General Court of Justice for an order compelling
disclosure, and the court shall have jurisdiction to issue such or-
ders. (1935, c. 265, s. 9; 1975, c. 787, s. 3.)
Local Modification. -New Hano-
ver: 1981, c. 960; city of Gastonia: 1985
)Reg. Sess., 1986), c. 902, s. 8.
Legal Periodicals. -For comment
on public access to government-held
records, see 55 N.C.L. Rev. 1187 (1977).
For survey of 1981 administrative
law, see 60 N.C.L. Rev. 1165 (1982).
CASE NOTES
"Any Person" Includes Corpora-
tion. -The General Assembly. did not
intend to exclude corporate entities from
the scope of the phrase "any person" in
this section. Advance Publications, Inc.
v. City of Elizabeth City, 53 N.C. App.
504,. 281 S.E.2d 69 (1981).
8
Cited in Carnahan v. Reed, 53 N.C.
App. 589, 281 S.E.2d 408 (1981); Hous-
ing Auth. v. Montgomery, 55 N.C. App.
422, 286 S.E.2d 114 (1982); North Cara
Tina State Bd. of Registration for Profes-
sional Eng'rs & Land Surveyors v. FTC,
615 F. Supp. 1155 (E.D.N.C. 1985).
•
§ 132-1 PUBLIC RECORDS
Chapter 132.
Public Records.
Sec. Sec.
132-6. Inspection and examination of 132-9. Access to records.
records.
§ 132-1. «Public records" defined.
Local Modification. - Caldwell:
1987, c. 472, s. 1(c); Carteret: 1987, c.
375, s. 4(c); Currituck: 1987, c. 209, s.
1(c); Duplin: 1987, c. 317, s. 1(c); Gaston:
1987, c. 618, s. lfc); Halifax: 198?, c.
377, s. 1(c); Henderson: 1987, c. 172; Lee:
1987, c. 538, s. 1(c); Lenoir: 1987, c. 561,
s. 1(c); MitchelL• 1987, c. 141, s. 1(c);
Nash: 1987, c. 32; Pasquotank: 1987, c.
175, s. 1(c); Pitt: 1987, c. 143, s. 1(c);
Rowan: 1987, c. 379, s. 1(c); Wilson:
1987, c. 484, e. 1(c); Yancey: 1987, c. 140,
s. 1(c); city of Elizabeth City: 1987, c.
175, s. 1(c); city of Greensboro: 1987, c.
Q~~
§ 132-9
51; cities of Hickory and Conover: 1987,
c. 319, s. 1; town of Beech Mountain:
1987, c. 376, s. 2(a); town of Blowing
Rock: 1987, c. 171, s. 1(c); town of Boone:
1987, c. 170, s. 1(c); Averasboro Town-
ship: 1987, c. 142.
Cross References. - As to diaries
kept in connection with construction or
repair contracts, see § 136-28.5.
Editor's Note. - By virtue of Session
Laws 1987, c. 172, the local modification
for Henderson by Session Laws 1985
(Reg. Sesa. 1986), c. 962 should be de-
leted from the main volume.
§ 132-6. Inspection and examination of records.
Every person having custody of public records shall permit them
to be inspected and examined at reasonable times and under his
supervision by any person, and he shall furnish certified copies
thereof on payment of fees as prescribed by law. Notwithstanding
the foregoing, public records relating to the proposed expansion or
location of specific business or industrial projects In the State may
be withheld so long as their inspection, examination or copying
would frustrate the purpose for which such public records were
created; provided, however, that nothing herein shall be construed
to permit the withholding of public records relating to general eco-
nomic development policies or activities. (1935,. c. 265, s. 6; 19$7, c.
835, s. 1.)
Effect of Amendments. -The 1987
amendment, effective August 14, 198?,
rewrote this section.
132-9. Access to records.
Any person who is denied access to public records for purposes of
inspection, examination or copying may apply to the appropriate
division of the General Court of Justice for an order compelling
disclosure, and the court shall have jurisdiction to issue such or-
ders. In an action to compel disclosure of public records which have
been withheld pursuant to the provisions of G.S. 132-6 concerning
public records relating to the proposed expansion or location of par-
ticular businesses and industrial projects, the burden shall be on
the custodian withholding the records to show that disclosure would
frustrate. the purpose of attracting that particular business or in-
131
,.,,~
Q "; s
§ 132-9 1987 CUMULATIVE SUPPLEMENT § 132-9 § 133-1 F
dustrial project.. (1935, c. 265, s. 9; 1975, c. 787, s. 3; 1987, c. 835, s. C
2J
Effect of Amendments. -The 1987 PL
amendment, effective August 14, 1987,
added the last sentence. Article 3.
Regulation oP Contractors
Public Works.
"~
~ Sec.
~ 133-32. Gifts and favors regulat
Gen.
§ 133-1. Employmen
works w
rials prc
~,
,~- Local Modification. - (As
Chapter) Tyrell: 1983, c. 208; 1
120; 1987, c. 58, s. 1; 1`?~•~, H.
Regulation of Cc
§ 133-32. Gifts and
(d) This section is not it
= honorariums for participa
souvenirs of nominal vah~
section is not intended t~
_ supplier from making c
defray meeting expenses .
tiers of such professional o~
governmental employees
zations from participation
able to all members of the
meeting. This section is ;
gifts or favors between en
relatives or the friends ai
dren, or members of their
relationship rather than ~
which is the motivating i
such gifts knowingly mad
by the donee to the agent.
tor, subcontractor, or supl
with the governmental a~
gift. (1981, c. 764, s. 1;
132 a
x.19.2 .ART. 3. CML ACTIONS AND PROCEEDINGS § 6-20
~ a.
,~ jditor's Note. -Section 150A-43, tive January 1, 1986, and has been re-
~' " to in this section, was rewritten codified as § 150B-43.
,s'~ n Laws 1985, c. 746, a. 1, effec-
at~.s'.
'~ ~ ~ 8-19.2. Attorney's fees to parties who compel dis-
--~~~= closure of public records.
~} ~~«:
'~~~ In any civil action in which a party successfully compels the
-'G ~elosure of public records pursuant to G.S. 132-9 or other appro-
''~`~;~`~,te provisions of law, the court may, in its discretion, allow the
~svailing party to recover reasonable attorney's fees to be taxed as
curt costs against the appropriate agency if:
(1) The court finds that the agency acted without substantial
justification in denying access to the public records; and
(2) The court finds that there are no special circumstances that
would make the award of attorney's fees unjust.
The party shall petition for the attorney's fees within 30 days
A,,liullowing final disposition of the case. The petition shall be sup-
y~'~ oottcd by an affidavit setting forth the basis for the request.
Nothing in this section grants permission to bring an action
` ' s~ainst an agency otherwise immune from suit or gives a right to
bring an action to a party who otherwise lacks standing to bring the
- action.
Any attorney's fees assessed against an agency under this section
shalt be charged against the operating expenses of the agency and
ahal l not be reimbursed from any other source. (1983, c. 918, s. 1.)
~ 6-20. Costs allowed or not, in discretion of court.
In other actions, costs may be allowed or not, in the discretion of
the court, unless otherwise provided by law. (Code, s. 527; Rev., s.
126?; C.S., s. 1243.)
Cross References. - As to costs
there new trial is granted, see § 6-33
eM the note thereto.
[.egal Periodicals. -For article,
"The Legal Theory of Attorney Fee
Shifting: A Critical Overview,' see 1982
Duke L.J. 6E1 (1982).
CASE NOTES
The Purpose of this provision is to
Live the court authority to allow costs,
e~ the justice of the case. may require.
(+ulley v. Macy, 89 N.C. 343 (1883);
Peron v. Boyd, 104 N.C. 422, 10 S.E.
X80 (1889).
Section Inapplicable to Contempt
Ptoceedin8• -Although labeled "civil"
eontemPt, a proceeding as for contempt
u by no means a civil action or proceed-
ing to which § 6-18, providing when
mate shall be allowed to plaintiff as a
matter of course, or this section would
ePP1Y~ littited Artists Records, Inc. v.
Eastern Tape Corp., 18 N.C. App. 183,
196 S.E.2d 598, cert. denied,l83 N.C.
~, 197 S.E.2d 880 (1973).
Exercise of Discretion Presumed.
- Nothing to the contrary appearing, it
will be taken that the court gave judg-
ment in the exercise of its discretion as
provided in this section. Gulley v. Macy,
89 N.C. 343 (1883); Wooten v. Walters,
110 N.C. 251, 14 S.E. 734 (189L).
Discretion Not Reviewable. - By
this section the taxing of the costs is
placed in the discretion of the trial
judge, which discretion is not review-
able. Kluttz v. Allison, 214 N.C. 379,
199 S.E. 395 (19381; Chriscoe v.
Chriscoe, 268 N.C. 554, 151 S.E.2d 33
(1966).
The exercise of the court's discretion-
13
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n
~~
ti
~y._- -
= ~.
'~. ~~`
;~,.
i -
~,
~.'~
~;~ ,
~~~
<~
_~~.
~::
r~ ~:"
,,. O 1 tJ
.?
is~A_95 ART. 5. ADMINISTRATION § 153A-98
s ;, -~
~ -~
3'
T` ~ ig,3A-95. Personnel board. ~ s
~i ~; '('he board of commissioners may establish a personnel board with ~ ~
~~>`~+uthonty, as regards employees in offices, departments, boards,
R ~ emissions, and agencies under the general control of. the board of T
,. ~ ~mmissioners, to administer tests designed to determine the merit ~~
;, toad fitness of candidates for appointment or promotion, to conduct
henrinRs upon the appeal of employees who have been suspended,
` demoted, or discharged, to hear employee grievances, or to under-
tako any other duties relating to personnel administration that the
.`~"' board of commissioners may direct. (1973, c. 822, s. 1.)
~ 153A-96. Participation in the Social Security Act.
The board of commissioners may take any action necessary to
~Il~>w county officers and employees to participate fully in benefits
provided by the Federal Social Security Act. (1973, c. 822, s. 1.)
"- ~-- ~ 153A-97. Defense of officers, employees and
others.
A county may, pursuant to G.S. 160A-167, provide for the defense
of an count officer or em to ee includin the count board of
Y Y P Y~ g Y
elections or any county election official, and of any member of a w
volunteer fire department or rescue squad which receives public
funds. (1957, c. 436; 1973, c. 822, s. 1; 1977, c. 307, s. 1J "
CASE NOTES
Cited in Bostic v. Wall, 588 F. Supp.
~!4 iW.D.N.C. 1984). :~ _ ...
# 153A-98. Privacy of employee personnel records. ° -''-
(a) Notwithstanding the provisions of G.S. 132-6 or any other ~,~<
general law or local act concerning access to public records, person- ,,,~`' '
nel files of employees, former employees, or applicants for employ- ~~ ~=%''
ment maintained by a county are subject to inspection and may be
disclosed only as provided by this section. For purposes of this sec-
tion, an employee's personnel file consists of any information in any ~ ~ ~ "`'.
form gathered by the. county with respect to that employee and, by = ~~`:b
way of illustration but not limitation, relating to his application, ~ "~' f,~
selection or nonselection, performance, promotions, demotions,
transfers, suspension and other disciplinary actions, evaluation '~`
forms, leave, salary, and termination of employment. As used in ro. :"'
this section, "employee" includes former employees of the county.
(b~ The following information with respect to each county em- ,~~
ployee is a matter of public record: name; age; date of original
employment or appointment to the county service; current. position ,c ''
title; current salary; date and amount of the most recent increase or _ ~ "~;
decrease in salary; date of the most recent promotion, demotion, '" "'
transfer, suspension, separation or other change in position classifi-
cation; and the office to which the employee is currently assigned.
The board of county commissioner:; shall determine in what form ;
and by whom this infrn•mation ~~~ill be maintained. Any person may
_ s
41 __ ;
4#
l~
,~
~~
s
r
k
F
':~
n
u
y J
,~~
a, ;
ro~
=a
J '
u
~ ~~
§ 153A-98 CH. 153A. COUNTIES § 153A-98
have access to this information for the purpose of inspection, exami-
nation, and copying, during regular business hours, subject only tq
such rules and regulations for the safekeeping of public records as
the board of commissioners may have adopted. Any person denied
access to this information may apply to the appropriate division of
the General Court of Justice for an order compelling disclosure, and
the court shall have jurisdiction to issue such orders.
(c) All information contained in a county employee's personnel
file, other than the information made public by subsection (b) of
this section, is confidential and shall be open to inspection only in
the following instances:
(1) The employee or his duly authorized agent may examine all
portions of his personnel file except (i) letters of reference
solicited prior to employment, and (ii) information concern-
ing a medical disability, mental or physical, that a prudent
j physician would not divulge to his patient.
(2) A licensed physician designated in writing by the employee
may examine the employee's medical record.
(3) A county employee having supervisopy authority over the
employee may examine all material irt, the employee's per-
sonnel file.
(4) By order of a court of competent jurisdiction, any person
may examine such portion of an employee's personnel file
as may be ordered by the court.
(5) An official of an agency of the State or federal government,
~ ~ or any political subdivision of the State, may inspect any
portion of a personnel file when such inspection is deemed
by the official having custody of such records to be in-
spected to be necessary and essential to the pursuance of a
~ proper function of the inspecting agency, but no informa-
~ tion shall be divulged for the purpose of assisting in a
' criminal prosecution of the employee, or for the purpose of
~ assisting in an investigation of the employee's tax liability.
However, the official having custody of such records may
release the name, address, and telephone number from a
personnel file for the purpose of assisting in a criminal
investigation.
(6) An employee may sign a written release, to be placed with
j his personnel file, that permits the person with custody of
the file to provide, either in person, by telephone, or by
mail, information specified in the release to prospective
employers, educational institutions, or other persons speci-
fied in the release.
(7) The county manager, with concurrence of the board of
' county commissioners, or, in counties not having a man-
ager, the board of county commissioners may inform any
person of the employment or nonemployment, promotion,
demotion, suspension or other disciplinary action, rein-
; statement, transfer, or termination of a county employee
and the reasons for that personnel action. Before releasing
the information, the manager or board shall determine in
writing that the release is essential to maintaining public
confidence in the administration of county services or to
maintaining the level and quality of county services. This
written determination shall he retained in the office of the
manager or the county clerk, is a record available for pub-
42
t ,
Q ~~ ~.
~~ ¢ 153A-98 ART. 5. ADMINISTRATION § 153A-98 r
t:
'S -
lic inspection and shall become part of the employee's per- a
''
..
.
~
sonnel file. ,
~- ~.
_
-~ (cl) Even if considered part of an employee's personnel file, the ~ ,a
'~
: following information need not be disclosed to an employee nor to ~
_
~_ 8ny other person: ?
~. (1) Testing or examination material used solely to determine --
. „ individual qualifications for appointment, employment, or
promotion in the county's service, when disclosure would
compromise the objectivity or the fairness of the testing or -
examination process. '=
(2) Investigative reports or memoranda and other information
concerning the investigation of possible criminal actions of
an employee, until the investigation is completed and no .~.-~{~
criminal action taken, or until the criminal action is con- ''~
- cluded.
(3) Information that might identify an undercover law enforce-
ment officer or a law enforcement informer.
(4) Notes, preliminary drafts and internal communications
~
concerning an employee. In the event such materials are ~ `
used for any official personnel decision, then the employee
or his duly authorized agent shall have a right to inspect
- such materials. _
(c2) The board of county commissioners may permit access, sub- ~ ;,~
ject to limitations they may impose, to selected personnel files by a
professional representative of a training, research, or academic in-
stitution if that person certifies that he will not release information
identifying the employees whose files are opened and that the infor-
mation will be used solely for statistical, research,, or teaching pur-
poses. This certification shall be retained by the county as long as
each personnel file so examined is retained. _
(d) The board of commissioners of a county that maintains per-
sonnel files containing information other than the information ''''°T
a-
mentioned in subsection (b) of this section shall establish proce- .
dures whereby an employee who objects to material in his file on i=
grounds that it is inaccurate or misleading may seek to have the ~~ ~`
~'~
material removed from the file or may place in the file a statement =
~
`
relating to the material. ~ ~'
=
(e) A public official or employee who knowingly, willfully, and ~ r,'
with malice permits any person to have access to information con- ~`;
tained in a personnel file, except as is permitted by this section, is ,~ ~ :~..
guilty of a misdemeanor and upon conviction shall be fined an
amount not more than five hundred dollars ($500.00).
(f) Any person, not specifically authorized by this section to have
access to a personnel file designated as confidential, who shall
knowingly and willfully examine in its official filing place, remove
or copy any portion of a confidential personnel file shall be guilty of
a misdemeanor and upon conviction shall be fined in the discretion _ ;
of the court but not in excess of five hundred dollars ($500.00). ~'
(1975, c. 701, s. 1; 1981, c. 926, ss. 1, 5-8.)
t
1:~