Wake school board security policy may violate the law
Posted March 17, 2015
Cary, N.C. — A Wake County Public Schools policy that requires visitors to school board meetings to show a driver's license appears to violate North Carolina's open meetings law.
State law says that "each official meeting of a public body shall be open to the public, and any person is entitled to attend such a meeting." There is no provision in the law that says public boards may require that meeting attendees sign in, much less submit to a background check.
But that's exactly what those attending school board meetings in Wake County regularly encounter, and it represents a level of security that is more stringent than what exists in four out of five schools in the system.
Upon entering the school board's main administrative building in Cary, visitors are asked to place their driver’s licenses in a machine manufactured by Raleigh-based LobbyGuard. Those without a driver's license may enter their names and birth dates. The machine then compares individuals against a national sex offender list as well as a local "red flag" list created by the school district. Those who pass muster have their picture taken and are issued a sticker. The information they turn over is stored on a server accessible to the school district.
Those who refuse to give their information or have their picture taken will not be admitted to the building, according to Marvin Connelly, chief of staff for the school district.
"We just believe that, on all school system property, whether it's a school, whether it's one of our administrative buildings, any school system property, we believe we have the obligation to ensure we're protecting our students," he said. The district uses the LobbyGuard machines in only 31 of its 171 schools, a fact Connelly chalks up to budget pressures.
But lawyers who specialize in the state's open government laws say there is a big difference between protecting a school, where the general public does not have a right to enter, and providing access to an open meeting.
"If I'm required to provide my information, if you're putting some artificial barrier to attending the meeting, that's not an open meeting," said Jonathan Jones, director of the North Carolina Open Government Coalition and Sunshine Center, based at Elon University.
Screening process is unusual
Both the state's open records and open meetings laws give some deference to people who wish to remain anonymous. For example, a public agency is not able to demand your name or other identifying information when you ask for most public records. And a public body is generally not allowed to ask that someone sign into a meeting just to attend, said Frayda Bluestein, a professor at the UNC School of Government.
"It doesn't matter who I am, I have an absolute right to attend," Bluestein said. That anonymity in public records or public meetings, she said, protects people who might fear consequences as a result of their requests. In the context of a public school system, for example, a parent may be worried their student could face some reprisal for speaking out.
Bluestein said she had not encountered a question before such as the one presented by the LobbyGuard machine. There could be an argument, she said, that the building's standard security should be allowed to stay in place to protect both staff and fellow visitors. The sign-in process, she said, could be construed as requiring sign-in for the building rather than the meeting itself.
However, the LobbyGuard system does ask visitors why they are there and records that purpose on their stickers.
Good advice ignored "The core question would be whether the specific steps that they are taking are more than they need and whether they create a chilling effect on those who would otherwise attend a meeting," she said.
Wake County purchased the LobbyGuard machine for its administration building in 2007 for less than $5,000, according to a school district spokeswoman. She said there is not an annual upkeep fee for the machine.
Encountering a LobbyGuard machine, or similar sign-in process, on the way into a public meeting is unusual even among the state's larger public bodies.
For example, members of the public may simply walk into the North Carolina General Assembly building and are asked, but not required, to sign in on a sheet of paper when they attend legislative committee meetings. Citizens attending meetings of the Wake County Board of Commissioners have to go through a metal detector because the commissioners' meeting room is in the same building that houses Wake County's criminal courts.
Guilford County Schools have no metal detectors or screening process such as Wake County's LobbyGuard, although there is sometimes extra security on hand if a meeting is expected to be contentious.
In Durham, visitors to the main school administration building two years ago might have encountered a LobbyGuard machine, according to district spokeswoman Chrissy Pearson. But current Superintendent Bert L'Homme got rid of the machine when he took over the Durham schools in 2014.
"Even back when we had that machine, we didn't require people to sign in for a public meeting," Pearson said. She was unable to say why that was Durham Public Schools' policy at the time.
LobbyGuard sells machines to corporations, governments and schools.
Kiosk stops sex offender from entering Raleigh school The company's machines occasionally make news when they help catch a person identified as a sex offender, as was the case in 2009 with a would-be volunteer for a Wake County school. Kevin Allen, LobbyGuard's president, points out that there have been a few violent incidents at school board meetings around the country.
"Is it relevant to the security of that meeting? Absolutely," Allen said. "Keeping people out who are known to be threats to your district, putting them on the red flag list and stopping them before they gain entry, I think, is very important."
Who gets red flagged?
School districts, Allen said, build their own red flag list. According to Connelly and school district Security Director Russ Smith, potential visitors land on Wake County's red flag list if they threaten a Wake County teacher, staff member or student, or if they are removed from Wake County property under a no trespassing order. That would include people like the Rev. William Barber, president of the North Carolina Chapter of the NAACP, who protested against changes to Wake County policies designed to create more diverse schools.
WRAL News requested a copy of the red flag list, but the school district declined, citing NCGS 132-1.7(a). That particular provision of the state's open records law exempts "details of public security plans and arrangements or the detailed plans and drawings of public buildings and infrastructure facilities," which does not seem to apply in this case.
"There are ways to address security concerns that don't involve you identifying yourself," said Mike Tadych, a Raleigh lawyer who specializes in open government and media law who often represents media organizations such as WRAL News. He said the LobbyGuard machine creates an "impediment" to attending a school board meeting that merely going through a metal detector does not.
During a joint phone interview, Smith and Connelly said that the school district has never encountered a situation where someone who wanted to attend a school board meeting has refused to identify themselves. Asked what would happen if someone did, Smith said, "I'm not going to answer that question."
Connelly immediately followed up by saying, "We err on the side of protecting our students and staff. We have a sign-in desk for the purpose of safety and security, which we believe the general statutes require us to provide. If a person is not willing to indicate their reason for entering onto school system property, we believe we have a responsibility to protect our kids."
Pressed as to what would happen if someone said they were there to attend a school board meeting but refused to submit to the screening process, Connelly said, "Because we're obligated to ensure that we're not allowing one sex offender in the presence of our students ... that person would not be allowed to come in if they're not willing to give us their name so we can do our due diligence."
Connelly said that obligation applies to all Wake County property and all of the system's students.
However, only one out of every five Wake County schools has a LobbyGuard machine that actually runs a background check against the sex offender list. Others schools use a free system that takes an individual’s picture and name to print a sticker, but does not run any sort of background check.
If keeping students away from sex offenders is the districts' priority, why has placing a LobbyGuard machine in the administration building been a higher priority than in the schools?
"We have multiple funding priorities and limited funds that we received from the state to fund all of our priorities," Connelly said. "We do have a plan to eventually increase provision for security in all of our schools."
Information never purged
As described by both Wake County Public School System officials and Allen of Lobby Guard, the machine at the school district administration building records each person's name, birth date, image and an image of his or her driver’s license. That information is then transmitted to LobbyGuard's servers where it is stored.
"The customer has full control over it," Allen said, including whether to purge the information periodically. According to both Allen and Smith, Wake County has never purged the information stored on its behalf.
That means the personal information of every visitor who has signed in via the LobbyGuard device since 2007 is still stored on the company’s servers.
Allen insists that information is secure and there has never been a data breach. If there is, the company has a procedure by which people who are affected would be notified.
Less clear is why Wake County would keep such a volume of information. In an email, district spokeswoman Lisa Luten says it has never been purged because "it doesn't meet certain criteria," such as including social security numbers.
"From a personal privacy standpoint, the data they're storing with no particular purpose raises a significant concern," Jones said. "What's the purpose of maintaining this for any length of time?"
Chris Brook, legal director for the North Carolina branch of the ACLU, says it is "troubling" the district has never purged that information.
"If you're going to be able to indefinitely maintain information related to people's political activities for no stated reasons, that could create a chilling effect on political activities," he said.
Samuel Carter, an adjunct computer science faculty member at NC State, said he was not familiar with the LobbyGuard system itself, although he said that Wake County generally has good computer security procedures. However, he said the district should have some sort of records retention policy for the information beyond storing it indefinitely.
"There's definitely a huge amount of data there about each person," he said. "If I wanted to do something malicious, that would be a good start to do it."
A school board meeting visitor wary of identity theft would have another reason to resist handing over their information.