“I guess I can give you that information — it’s a matter of public record.”
Most of us lawyers who work with local governments have heard this – many of us probably have said it. But just because a piece of information is a public record, that doesn’t mean a lawyer doesn’t still have an obligation to keep that information confidential. The concepts of “public record” and “confidential information” arise under separate rules that really don’t have much to do with one another.
Under North Carolina law, if information is a public record, all that really means is that a person who makes a proper written request to the appropriate custodian of that record is entitled to a copy of that record. The question of whether something is, or is not, a public record can sometimes be a difficult question, of course. But once a record is classified as “public,” the implications of that determination are specific and limited.
On the other hand, lawyers have a responsibility to keep confidential any information acquired during the course of the professional relationship unless the client gives informed consent to the disclosure. Under the rules of professional conduct, the lawyer can rely on a client’s implied consent only when the disclosure of confidential information is being used to carry out the representation – the rules don’t recognize a general exception based on “I’m sure the client wouldn’t mind.” And more to the current point, there’s not an exception based on the idea that the information is a public record. If the information would otherwise be confidential, it’s still confidential, whether it’s a public record or not.
If you as the lawyer are asked a question about information that’s in the public record, you don’t have a duty under the public records law to answer the question. And in fact, if you acquired that information as a result of your attorney-client relationship, that information is confidential to the client and you’re not allowed to answer the question. Now, if the lawyer is in fact the legal custodian of the record you’d have to respond to an appropriate written request whether or not the information is confidential, but of course that’s going to be a limited circumstance (and may still be subject to relevant exceptions in the public records law).
Here are a couple of scenarios where this might come up –
· A friend asks you what the city manager’s salary is
· You get an email from the planning director letting you know that a big company just applied for a land use approval at the highway intersection, and you have another client that’s been thinking about buying some adjacent land
· Someone asks you what you charged the County on that last bond deal. That information is almost certainly a public record, and you might be deemed to be a custodian of that record if you get a written request. But you shouldn’t answer an oral request unless you have informed consent from the client.
“Think before you speak” is a pretty good piece of generic advice. Here’s another place where it applies.