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New NHC school board policy doesn't align with the spirit of public records law

Changed language in Policy 2320. The policy passed 4-3. Board Member Pat Bradford said to WHQR, "I'm going to request we change the six days back to 5 and take out the business days stipulation."
Changed language in Policy 2320. The policy passed 4-3. Board Member Pat Bradford said to WHQR, "I'm going to request we change the six days back to 5 and take out the business days stipulation."

Last week, the New Hanover County School Board passed policy 2320: Compliance with Open Meetings Law. The vote was 4-3 with members Stephanie Kraybill, Stephanie Walker, and Hugh McManus dissenting. However, public accountability experts say some parts of the newest policy run afoul of public records law.

At issue in the board's new policy is the following line: “Board Members would have access to [supporting agenda documents] prior to the public.”

The policy used to read that members receive these documents at the same time as the public. These documents are almost always public records, as defined by state law, and rarely if ever require redactions that would delay their release.

Under the policy, the documents would be posted to the school district’s website 48 hours before a meeting; for regular meetings, held on Tuesdays, that would be Sunday afternoon by 5 p.m. Board members would get the documents earlier, although the policy doesn't specify any particular timeline.

The reasoning for elected officials receiving and viewing files before the public seems to have come from board member Pat Bradford at a February policy committee meeting.

“If the public then has access to everything we have, sits at our meetings, and voices their opinion at our meetings, then they might as well be elected officials. That's kind of the gist of my thinking,” she said.

When WHQR asked Bradford to clarify or add context to this statement, she wrote, “In a [sic] group discussions I think through things out loud to get feedback. It is a habit I am learning not to do in our meetings. I frequently regret it. I do believe 48 hours is timely. It is not nefarious. In reality, when board members first lay eyes on materials, we see some incompleteness or even slight inaccuracies. That extra time gives staff time to correct or add to what is put out to the public so it is complete.”

Kraybill had a counter to this perspective during the March 12 board meeting.

She said the materials should be available to the public at the same time as the board. She added that having a “first crack” at public information is “a violation of [a] request [of] public records if a person wants to have that.”

Walker voiced her concerns with having the board review the files before constituents, “I'm worried that that's not enough notice for the public to prepare themselves for a meeting. I'm concerned with public records [law], if we get it – unless it's confidential, then the public has a right to see it.”

Brooks Fuller is the director of the Open Government Coalition and an Assistant Professor of Journalism at Elon University. He said it’s important for the public to know that even draft files are public records.

“In an appellate court decision from 1992 [in the case News and Observer v. Poole], North Carolina's appeals courts have said very strongly that even draft documents are still subject to the public records laws so that we can see what our government is up to,” Fuller said.

State Attorney General Josh Stein agrees with this advice, too. In his 2019 Open Government Guide, he wrote, “The public has a right to see a meeting agenda and accompanying handouts (except exempted materials, such as attorney-client communications, etc.) as soon as they are created.”

But even attorney-client communications have some clear provisions and exemptions.

These are the stipulations around 'attorney-client' privileges.
Open Government Guide, Attorney General's Office
These are the stipulations around 'attorney-client' privileges.

Stein’s Office has additional guidance that “agencies may not withhold records based on the agency’s belief that immediate release of the records would not be prudent or timely.”

To Bradford’s point about vetting information and catching typos, etc., Fuller said, “You can vet that information before you create the document, and when it comes to fixing mistakes in documents, that's great. I think it's nice to have a record of iterations of draft documents so that you can see that mistakes were corrected. So I don't see any harm in giving members of the public every bit of information they need to know about how you were doing your job.”

At the March 12 meeting, Kraybill asked board attorney Jonathan Vogel about the language: “My question to our esteemed legal counsel is, isn't it that once a document is created, it becomes a matter of public record?”

Vogel said it “might be the kind of record [agenda files] that would be disclosed upon a request, and it may or may not require redactions.”

It’s worth noting that because the new policy does not publish agenda documents at the same time they are given to board members, the public is left in the dark as to what documents are now legally public records that can be requested — in other words they don’t know what they don’t know.

In addition, because state law is notoriously vague on how quickly a government body must respond to a public records request (the language is, "as promptly as possible"), nothing ensures the public would receive agenda documents in a meaningful time frame — even if they knew what documents to request. If, for example, board members received their agenda documents five business days before a meeting, and a PRR was filed that day, nothing would compel the district to provide the requested documents sooner than the 48-hour mark in the new policy.

Public records law specifically outlines the guidelines for what can be redacted. If a government entity is redacting information or not giving over a record, they’d have to cite the exemption listed in the statute.

Brooks said, “One really important thing to always remember is that our courts have said over and over again, that the public records law should be interpreted broadly, in favor of access, and exemptions to the law should be interpreted narrowly, again, in favor of access. That is the guiding spirit behind our law. And that's how government officials at all levels should comport themselves.”

At this March 12 meeting, Walker asked Vogel about what to do if someone asks for one of those public documents before the board gets to view them.

Vogel responded, “Unless that document is covered by some exception to the public records law, it would be considered a public record, that would be disclosed upon a request from the public.”

Fuller said that public bodies do have closed sessions to speak with attorneys about issues like personnel matters, but then they’re also required to “inform the public immediately as decisions are made.”

To Bradford’s reference about the public speaking at meetings and viewing documents and having access, Fuller said, “That's exactly what the public records and open meetings laws are supposed to do, and that's a good thing,” he said. “It doesn't become a bad thing to give the public power and information and interest in the system. That benefits all of us. It helps prevent and address corruption. It helps people understand who they want to vote for and what public policies they want to get behind. It helps people understand how those policies affect their daily lives.”

[Editor's note: At Tuesday's policy meeting, committee members indicated policy 2320 should be reviewed again and possible changes to the language made.]

Rachel is a graduate of UNCW's Master of Public Administration program, specializing in Urban and Regional Policy and Planning. She also received a Master of Education and two Bachelor of Arts degrees in Political Science and French Language & Literature from NC State University. She served as WHQR's News Fellow from 2017-2019. Contact her by email: rkeith@whqr.org or on Twitter @RachelKWHQR