North Carolina’s legislature is now exempt from the public records law that governs other branches of government. The change is a last-minute addition to the state budget, and it comes alongside a major expansion of the legislature’s ability to seize documents from state agencies and private contractors.
North Carolina law allows the public to obtain a variety of documents from state government and its elected officials. Anyone can get copies of emails sent to an elected official or access their calendar to see when they met with lobbyists.
That transparency law still applies to the governor, local mayors and agency leaders across the state. But a provision in the budget bill now cuts off that access for anyone seeking records from state legislators and their staff. It says the lawmakers themselves can decide what to make public — and which documents to delete or toss in the shredder.
"They have every incentive to leave you in the dark if there's a record of something unflattering or that might not be politically advantageous to them," said Brooks Fuller, executive director of the N.C. Open Government Coalition. "And my belief is that that's probably what most legislators are going to do."
Legislative leaders wouldn’t say who asked for the provision to be added to the final draft of the budget. But House Speaker Tim Moore defended the change.
"I think we received a public records request to every member of the General Assembly for every bit of correspondence for the last three years," he said. "Now imagine how much that would cost to produce that. We get some kinds of requests like that routinely, that make no sense, that aren't designed to get information. They're designed to add to cost and harassment; it ends up costing the taxpayers money. So how do you balance that, with ensuring that the public has full transparency?"
The longstanding public records law allows government agencies to charge a fee when a records request involves an "extensive" amount of staff resources.
"Just because it's inconvenient or time consuming or expensive, it's not a good enough public policy reason to not allow free flow of information," Fuller said.
The move has few defenders outside the Legislative Building. The conservative John Locke Foundation, the N.C. Press Association and many Democrats have called for the language to be repealed.
The change also removes transparency from the redistricting process underway this month. In the past, documents used in drawing new congressional and legislative maps were released after the new districts were approved. That won’t happen this year, prompting criticism from Rep. Tim Longest, D-Wake.
"It shields precisely those records on matters where folks from both sides of the aisle have said we should be more transparent: Drawing district lines," Longest said.
Moore said the redistricting records may still end up becoming public through lawsuits expected to challenge the maps.
As the legislature shuts off access to its internal workings, it’s giving its own staff far more power to get documents and information from other branches of government, as well as private companies that do business with the state.
A few years ago, legislative leaders eliminated a nonpartisan agency that reviewed state programs and recommended improvements.
That agency was replaced by investigators working directly for the leaders of a legislative panel, known as theJoint Legislative Commission on Government Operations, also referred to as Gov Ops. It’s recently probed hurricane recovery programs and high school sports oversight, holding sometimes testy hearings with officials from Gov. Roy Cooper’s administration.
A budget provision will let partisan staffers for the commission seize documents and enter offices of state agencies and government contractors.
Sen. Graig Meyer, D-Orange, says the access is so broad that the partisan investigators could enter private homes of political opponents without a warrant, if they use their home as the headquarters for a business. He compares it to a spy agency.
"The advent of this type of secret policing feels more like opening the door of authoritarianism and should scare us all," he said, adding that the language requires people contacted by Gov Ops staffers to keep the interaction confidential. "Companies hoping to pursue growth plans in North Carolina may completely avoid our state if they believe that our legislative Gov Ops Gestapo will be digging into their private information or walking into their doors to demand access to their computer systems at any moment."
Republicans dismissed Meyer’s scenarios as hyperbole. They said the new authority for the agency is similar to what the state auditor uses to investigate government spending; the goal is to more effectively look at how state agencies and contractors are overseeing programs like hurricane recovery.
"That's just ridiculous," Moore said of the 'secret police' claim. "There's no arrest powers. There's nothing like that."
But Brooks Fuller of the N.C. Open Government Coalition said it’s a concerning shift when paired with the repeal of public records laws.
"This means that folks who already enjoy a lot of privilege and a lot of power as elected representatives in state government now have the ability to make public information laws, such as they exist, work for them," he said. "And meanwhile, they've stripped that power away from average folks."
Reporters and others filed a few more requests to get lawmakers’ emails before the change took effect. It could be folks’ last chance for now.
