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Chapter 132. Public Records N.C. Statutes: Public
Records: 132-1 - 132-5.1
§132-1. "Public records"
defined (a) "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. Agency
of North Carolina government or its subdivisions shall mean and include every
public office, public officer or official (State or local, elected or
appointed), institution, board, commission, bureau, council, department,
authority or other unit of government of the State or of any county, unit,
special district or other political subdivision of government. (b) The public
records and public information compiled by the agencies of North Carolina
government or its subdivisions are the property of the people. Therefore, it is
the policy of this State that the people may obtain copies of their public
records and public information free or at minimal cost unless otherwise
specifically provided by law. As used herein, "minimal cost" shall mean the
actual cost of reproducing the public record or public
information.
§132-1.1. Confidential communications by legal counsel to
public board or agency; State tax information (a) Confidential
Communications. -- 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 government, made within
the scope of the attorney-client relationship by any attorney-at-law serving any
such governmental body, concerning 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
governmental 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 specifically made public by the governmental body
receiving such written communications; provided, however, that such written
communications and copies thereof shall become public records as defined in G.S.
132-1 three years from the date such communication was received by such public
board, council, commission or other governmental body. (b) State and Local
Tax Information. -- Tax information may not be disclosed except as provided in
G.S. 105-259. As used in this subsection, "tax information" has the same meaning
as in G.S. 105-259. Local tax records that contain information about a
taxpayer's income or receipts may not be disclosed except as provided in G.S.
153A-148.1 and G.S. 160A-208.1.
§132-1.2. Confidential
information Nothing in this Article shall be construed to require or
authorize a public agency to disclose any information which: (1) Constitutes
a "trade secret" as defined in G.S. 66-152 (3); (2) Is the property of a
private "person" as defined in G.S. 66-152 (2); (3) Is disclosed or
furnished to the public agency in connection with the owner's performance of a
public contract or in connection with a bid, application, proposal, industrial
development project, or in compliance with laws, regulations, rules, or
ordinances of the United States, the State, or political subdivisions of the
State; and (4) Is designated or indicated as "confidential" or as a "trade
secret" at the time of its initial disclosure to the public
agency.
§132-1.3. Settlements made by or on behalf of public agencies,
public officials, or public employees; public records (a) Public records,
as defined in G.S. 132-1, shall include all settlement documents in any suit,
administrative proceeding or arbitration instituted against any agency of North
Carolina government or its subdivisions, as defined in G.S. 132-1, in connection
with or arising out of such agency's official actions, duties or
responsibilities, except in an action for medical malpractice against a hospital
facility. No agency of North Carolina government or its subdivisions, nor any
counsel, insurance company or other representative acting on behalf of such
agency, shall approve, accept or enter into any settlement of any such suit,
arbitration or proceeding if the settlement provides that its terms and
conditions shall be confidential, except in an action for medical malpractice
against a hospital facility. No settlement document sealed under subsection (b)
of this section shall be open for public inspection. (b) No judge,
administrative judge or administrative hearing officer of this State, nor any
board or commission, nor any arbitrator appointed pursuant to the laws of North
Carolina, shall order or permit the sealing of any settlement document in any
proceeding described herein except on the basis of a written order concluding
that (1) the presumption of openness is overcome by an overriding interest and
(2) that such overriding interest cannot be protected by any measure short of
sealing the settlement. Such order shall articulate the overriding interest and
shall include findings of fact that are sufficiently specific to permit a
reviewing court to determine whether the order was proper. (c) Except for
confidential communications as provided in G.S.132-1.1, the term "settlement
documents," as used herein, shall include all documents which reflect, or which
are made or utilized in connection with, the terms and conditions upon which any
proceedings described in this section are compromised, settled, terminated or
dismissed, including but not limited to correspondence, settlement agreements,
consent orders, checks, and bank drafts.
§132-1.4. Criminal
investigations; intelligence information records (a) Records of criminal
investigations conducted by public law enforcement agencies or records of
criminal intelligence information compiled by public law enforcement agencies
are not public records as defined by G.S. 132-1. Records of criminal
investigations conducted by public law enforcement agencies or records of
criminal intelligence information may be released by order of a court of
competent jurisdiction. (b) As used in this section: (1) "Records of
criminal investigations" means all records or any information that pertains to a
person or group of persons that is compiled by public law enforcement agencies
for the purpose of attempting to prevent or solve violations of the law,
including information derived from witnesses, laboratory tests, surveillance,
investigators, confidential informants, photographs, and measurements. (2)
"Records of criminal intelligence information" means records or information that
pertain to a person or group of persons that is compiled by a public law
enforcement agency in an effort to anticipate, prevent, or monitor possible
violations of the law. (3) "Public law enforcement agency" means a municipal
police department, a county police department, a sheriff's department, a company
police agency commissioned by the Attorney General pursuant to G.S. 74E- 1, et
seq., and any State or local agency, force, department, or unit responsible for
investigating, preventing, or solving violations of the law. (4) "Violations
of the law" means crimes and offenses that are prosecutable in the criminal
courts in this State or the United States and infractions as defined in G.S.
14-3.1. (5) "Complaining witness" means an alleged victim or other person
who reports a violation or apparent violation of the law to a public law
enforcement agency. (c) Notwithstanding the provisions of this section, and
unless otherwise prohibited by law, the following information shall be public
records within the meaning of G.S. 132-1. (1) The time, date, location, and
nature of a violation or apparent violation of the law reported to a public law
enforcement agency. (2) The name, sex, age, address, employment, and alleged
violation of law of a person arrested, charged, or indicted. (3) The
circumstances surrounding an arrest, including the time and place of the arrest,
whether the arrest involved resistance, possession or use of weapons, or
pursuit, and a description of any items seized in connection with the arrest.
(4) The contents of "911" and other emergency telephone calls received by or
on behalf of public law enforcement agencies, except for such contents that
reveal the name, address, telephone number, or other information that may
identify the caller, victim, or witness. (5) The contents of communications
between or among employees of public law enforcement agencies that are broadcast
over the public airways. (6) The name, sex, age, and address of a
complaining witness. (d) A public law enforcement agency shall temporarily
withhold the name or address of a complaining witness if release of the
information is reasonably likely to pose a threat to the mental health, physical
health, or personal safety of the complaining witness or materially compromise a
continuing or future criminal investigation or criminal intelligence operation.
Information temporarily withheld under this subsection shall be made available
for release to the public in accordance with G.S. 132-6 as soon as the
circumstances that justify withholding it cease to exist. Any person denied
access to information withheld under this subsection may apply to a court of
competent jurisdiction for an order compelling disclosure of the information. In
such action, the court shall balance the interests of the public in disclosure
against the interests of the law enforcement agency and the alleged victim in
withholding the information. Actions brought pursuant to this subsection shall
be set down for immediate hearing, and subsequent proceedings in such actions
shall be accorded priority by the trial and appellate courts. (e) If a public
law enforcement agency believes that release of information that is a public
record under subdivisions (c)(1) through (c)(5) of this section will jeopardize
the right of the State to prosecute a defendant or the right of a defendant to
receive a fair trial or will undermine an ongoing or future investigation, it
may seek an order from a court of competent jurisdiction to prevent disclosure
of the information. In such action the law enforcement agency shall have the
burden of showing by a preponderance of the evidence that disclosure of the
information in question will jeopardize the right of the State to prosecute a
defendant or the right of a defendant to receive a fair trial or will undermine
an ongoing or future investigation. Actions brought pursuant to this subsection
shall be set down for immediate hearing, and subsequent proceedings in such
actions shall be accorded priority by the trial and appellate courts. (f)
Nothing in this section shall be construed as authorizing any public law
enforcement agency to prohibit or prevent another public agency having custody
of a public record from permitting the inspection, examination, or copying of
such public record in compliance with G.S. 132-6. The use of a public record in
connection with a criminal investigation or the gathering of criminal
intelligence shall not affect its status as a public record. (g) Disclosure
of records of criminal investigations and criminal intelligence information that
have been transmitted to a district attorney or other attorney authorized to
prosecute a violation of law shall be governed by this section and Chapter 15A
of the General Statutes. (h) Nothing in this section shall be construed as
requiring law enforcement agencies to disclose the following: (1) Information
that would not be required to be disclosed under Chapter 15A of the General
Statutes; or (2) Information that is reasonably likely to identify a
confidential informant. (i) Law enforcement agencies shall not be required
to maintain any tape recordings of "911" or other communications for more than
30 days from the time of the call, unless a court of competent jurisdiction
orders a portion sealed. (j) When information that is not a public record
under the provisions of this section is deleted from a document, tape recording,
or other record, the law enforcement agency shall make clear that a deletion has
been made. Nothing in this subsection shall authorize the destruction of the
original record. (k) The following court records are public records and may
be withheld only when sealed by court order: arrest and search warrants that
have been returned by law enforcement agencies, indictments, criminal summons,
and nontestimonial identification orders. (l) Records of investigations of
alleged child abuse shall be governed by G.S. 7A-675.
§132-1.5. 911
database Automatic number identification and automatic location
identification information that consists of the name, address, and telephone
numbers of telephone subscribers which is contained in a county 911 database is
confidential and is not a public record as defined by Chapter 132 of the General
Statutes if that information is required to be confidential by the agreement
with the telephone company by which the information was obtained. Dissemination
of the information contained in the 911 automatic number and automatic location
database is prohibited except on a call-by-call basis only for the purpose of
handling emergency calls for the training, and any permanent record of the
information shall be secured by the public safety answering points and disposed
of in a manner which will retain that security except as otherwise required by
applicable law.
§132-2. Custodian designated The public
official in charge of an office having public records shall be the custodian
thereof.
§132-3. Destruction of records regulated (a)
Prohibition. -- No public official may destroy, sell, loan, or otherwise dispose
of any public record, except in accordance with G.S. 121-5 and G.S. 130A-99,
without the consent of the Department of Cultural Resources. Whoever unlawfully
removes a public record from the office where it is usually kept, or alters,
defaces, mutilates or destroys it shall be guilty of a Class 3 misdemeanor and
upon conviction only fined not less than ten dollars ($10.00) nor more than five
hundred dollars ($500.00). (b) Revenue Records. -- Notwithstanding
subsection (a) of this section and G.S. 121-5, when a record of the Department
of Revenue has been copied in any manner, the original record may be destroyed
upon the order of the Secretary of Revenue. If a record of the Department of
Revenue has not been copied, the original record shall be preserved for at least
three years. After three years the original record may be destroyed upon the
order of the Secretary of Revenue.
§132-4. Disposition of records at
end of official's term Whoever has the custody of any public records
shall, at the expiration 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 be guilty of a Class 1 misdemeanor.
§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 Class 1 misdemeanor.
§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 custodian 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 materials in
issue, or any part thereof, are located for the return of such public records.
The court may order such public records to be delivered 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
enforce such order through its contempt power and procedures. (b) At any time
after the filing of the petition set out in subsection (a) or contemporaneous
with such filing, the public official seeking the return of the public records
may by ex parte 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 deliver the same to the court under the circumstances
hereinafter set forth; or (2) A preliminary injunction preventing the sale,
removal, disposal 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, removed 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
granted. (d) The aforementioned order of seizure or preliminary injunction
shall issue without notice to the respondent and without the posting of any bond
or other security by the petitioner.
§132-6. Inspection and
examination of records (a) 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. As used herein, "custodian" does not mean an agency that holds the
public records of other agencies solely for purposes of storage or safekeeping
or solely to provide data processing. (b) No person requesting to inspect
and examine public records, or to obtain copies thereof, shall be required to
disclose the purpose or motive for the request. (c) No request to inspect,
examine, or obtain copies of public records shall be denied on the grounds that
confidential information is commingled with the requested nonconfidential
information. If it is necessary to separate confidential from nonconfidential
information in order to permit the inspection, examination, or copying of the
public records, the public agency shall bear the cost of such separation on the
following schedule: State agencies after June 30, 1996; Municipalities
with populations of 10,000 or more, counties with populations of less than
25,000 or more, as determined by the 1990 U.S. Census, and public hospitals in
those counties, after June 30, 1997; Municipalities with populations of less
than 10,000, counties with populations of less than 25,000, as determined by the
1990 U.S. Census, and public hospitals in those counties, after June 30,
1998; Political subdivisions and their agencies that are not otherwise
covered by this schedule, after June 30, 1998. (d) Notwithstanding the
provisions of subsections (a) and (b) of this section, 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 economic development policies
or activities. (e) The application of this Chapter is subject to the
provisions of Article 1 of Chapter 121 of the General Statutes, the North
Carolina Archives and History Act. (f) Notwithstanding the provisions of
subsection (a) of this section, the inspection or copying of any public record,
which, because of its age or condition could be damaged during inspection or
copying, may be made subject to reasonable restrictions intended to preserve the
particular record.
§132-6.1. Electronic data-processing
records (a) After June 30, 1996, no public agency shall purchase, lease,
create, or otherwise acquire any electronic data-processing system for the
storage, manipulation, or retrieval of public records unless it first determines
that the system will not impair or impede the agency's ability to permit the
public inspection and examination, and to provide electronic copies of such
records. Nothing in this subsection shall be construed to require the retention
by the public agency of obsolete hardware or software. (b) Every public
agency shall create an index of computer databases compiled or created by a
public agency on the following schedule: (1) State agencies by July 1,
1996; (2) Municipalities with populations of 10,000 or more, counties with
populations of 25,000 or more, as determined by the 1990 U.S. Census, and public
hospitals in those counties, by July 1, 1997; (3) Municipalities with
populations of less than 10,000, counties with populations of less that 25,000,
as determined by the 1990 U.S. Census, and public hospitals in those counties,
by July 1, 1998; (4) Political subdivisions and their agencies that are not
otherwise covered by this schedule, after June 30, 1998. The index shall be a
public record and shall include, at a minimum, the following information with
respect to each database listed therein: a list of the data fields; a
description of the format or record layout; information as to the frequency with
which the database is updated; a list of any data fields to which public access
is restricted; a description of each form in which the database can be copied or
reproduced using the agency's computer facilities; and a schedule of fees for
the production of copies in each available form. Electronic databases compiled
or created prior to the date by which the index must be created in accordance
with this subsection may be indexed at the public agency's option. The form,
content, language, and guidelines for the index and the databases to be indexed
shall be developed by the Division of Archives and History in consultation with
officials at other public agencies. (c) Nothing in this section shall require
a public agency to create a computer database that the public agency has not
otherwise created or is not otherwise required to be created. Nothing in this
section requires a public agency to disclose its software security, including
passwords. (d) The following definitions apply in this section: (1)
Computer database. -- A structured collection of data or documents residing in a
database management program or spreadsheet software. (2) Computer hardware.
-- Any tangible machine or device utilized for the electronic storage,
manipulation, or retrieval of data. (3) Computer program. -- A series of
instructions or statements that permit the storage, manipulation, and retrieval
of data within an electronic data-processing system, together with any
associated documentation. The term does not include the original data, or any
analysis, compilation, or manipulated form of the original data produced by the
use of the program or software. (4) Computer software. -- Any set or
combination of computer programs. The term does not include the original data,
or any analysis, compilation, or manipulated form of the original data produced
by the use of the program or software. (5) Electronic data-processing system.
-- Computer hardware, computer software, or computer programs or any combination
thereof, regardless of kind or origin.
§132-6.2. Provisions for copies
of public records; fees (a) Persons requesting copies of public records
may elect to obtain them in any and all media in which the public agency is
capable of providing them. No request for copies of public records in a
particular medium shall be denied on the grounds that the custodian has made or
prefers to make the public records available in another medium. The public
agency may assess different fees for different media as prescribed by
law. (b) Persons requesting copies of public records may request that the
copies be certified or uncertified. The fees for certifying copies of public
records shall be as provided by law. Except as otherwise provided by law, no
public agency shall charge a fee for an uncertified copy of a public record that
exceeds the actual cost to the public agency of making the copy. For purposes of
this subsection, "actual cost" is limited to direct, chargeable costs related to
the reproduction of a public record as determined by generally accepted
accounting principles and does not include costs that would have been incurred
by the public agency if a request to reproduce a public record had not been
made. Notwithstanding the provisions of this subsection, if the request is such
as to require extensive use of information technology resources or extensive
clerical or supervisory assistance by personnel of the agency involved, or if
producing the record in the medium requested results in a greater use of
information technology resources than that established by the agency for
reproduction of the volume of information requested, then the agency may charge,
in addition to the actual cost of duplication, a special service charge, which
shall be reasonable and shall be based on the actual cost incurred for such
extensive use of information technology resources or the labor costs of the
personnel providing the services, or for a greater use of information technology
resources that is actually incurred by the agency or attributable to the agency.
If anyone requesting public information from any public agency is charged a fee
that the requester believes to be unfair or unreasonable, the requester may ask
the Information Resource Management Commission to mediate the dispute. (c)
Persons requesting copies of computer databases may be required to make or
submit such requests in writing. Custodians of public records shall respond to
all such requests as promptly as possible. If the request is granted, the copies
shall be provided as soon as reasonably possible. If the request is denied, the
denial shall be accompanied by an explanation of the basis for the denial. If
asked to do so, the person denying the request shall, as promptly as possible,
reduce the explanation for the denial to writing. (d) Nothing in this section
shall be construed to require a public agency to respond to requests for copies
of public records outside of its usual business hours. (e) Nothing in this
section shall be construed to require a public agency to respond to a request
for a copy of a public record by creating or compiling a record that does not
exist. If a public agency, as a service to the requester, voluntarily elects to
create or compile a record, it may negotiate a reasonable charge for the service
with the requester. Nothing in this section shall be construed to require a
public agency to put into electronic medium a record that is not kept in
electronic medium.
§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 materials and in such arrangement as to be easily accessible for
convenient use. All public records should be kept in the buildings in which they
are ordinarily used. Record books should be copied or repaired, renovated or
rebound if worn, mutilated, damaged or difficult 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 commissioners of such county, or the governing body of such municipality
may authorize that the records in need of repair, restoration, or 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
have the force of the original.
§132-8. Assistance by and to
Department of Cultural 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 Cultural Resources, establishing a time period for the retention or disposal
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 of records so
scheduled.
§132-8.1. Records management program administered by
Department of Cultural Resources; 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 official records shall be administered
by the Department of Cultural Resources. 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
management 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, equipment, and supplies employed in
creating, maintaining, and servicing records. It shall be the duty of the head
of each State agency 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, municipality, or other subdivision of
government.
§132-8.2. Selection and preservation of records considered
essential; making or designation of preservation duplicates; force and effect of
duplicates or copies thereof In cooperation with the head of each State
agency and the governing 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 or cause to be made preservation duplicates or
designate as preservation duplicates existing copies of such essential public
records. Preservation 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 accurately 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
preservation duplicate shall be deemed for all purposes to be a transcript,
exemplification, or certified copy of the original record. Such preservation
duplicates shall be preserved in the place and manner of safekeeping prescribed
by the Department of Cultural Resources.
§132-9. Access to
records (a) Any person who is denied access to public records for
purposes of inspection and examination, or who is denied copies of public
records, may apply to the appropriate division of the General Court of Justice
for an order compelling disclosure or copying, and the court shall have
jurisdiction to issue such orders. Actions brought pursuant to this section
shall be set down for immediate hearing, and subsequent proceedings in such
actions shall be accorded priority by the trial and appellate courts. (b) 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 particular 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 industrial project. (c) In any action brought pursuant to this
section in which a party successfully compels the disclosure of public records,
the court may, in its discretion, allow the prevailing party to recover
reasonable attorneys' fees 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 attorneys' fees unjust. Any attorneys' fees assessed against a
public agency under this section shall be charged against the operating expenses
of the agency; provided, however, that the court may order that all or any
portion of any attorneys' fees so assessed be paid personally by any public
employee or public official found by the court to have knowingly or
intentionally committed, caused, permitted, suborned, or participated in a
violation of this Article. No order against any public employee or public
official shall issue in any case where the public employee or public official
seeks the advice of any attorney and such advice is followed. (d) If the
court determines that an action brought pursuant to this section was filed in
bad faith or was frivolous, the court may, in its discretion, assess a
reasonable attorney's fee against the person or persons instituting the action
and award it to the public agency as part of the costs.
§132-10.
Qualified exception for geographical information systems Geographical
information systems databases and data files developed and operated by counties
and cities are public records within the meaning of this Chapter. The county or
city shall provide public access to such systems by public access terminals or
other output devices. Upon request, the county or city shall furnish copies, in
documentary or electronic form, to anyone requesting them at reasonable cost. As
a condition of furnishing an electronic copy, whether on magnetic tape, magnetic
disk, compact disk, or photo-optical device, a county or city may require that
the person obtaining the copy agree in writing that the copy will not be resold
or otherwise used for trade or commercial purposes. For purposes of this
section, publication or broadcast by the news media, real estate trade
associations, or Multiple Listing Services operated by real estate trade
associations shall not constitute a resale or use of the data for trade or
commercial purposes and use of information without resale by a licensed
professional in the course of practicing the professional's profession shall not
constitute use for a commercial purpose. For purposes of this section, resale at
cost by a real estate trade association or Multiple Listing Services operated by
a real estate trade association shall not constitute a resale or use of the data
for trade or commercial purposes.