North Carolina legislators could keep their own records secret under new state law
North Carolina Gov. Roy Cooper says he will allow the Republican-backed state budget to become law without his signature. He made the announcement today after the budget passed the Republican-controlled House and Senate early this morning.
The budget will give raises to teachers and reduce the state’s income tax rate. It also includes a provision allowing lawmakers to exempt themselves from North Carolina’s public records law and keep their own records secret.
Brooks Fuller is the director of the North Carolina Open Government Coalition. He joined All Things Considered to discuss the potential impacts of that change.
Nick de la Canal: Could we start by laying out how the public records law is supposed to work as previously written for state lawmakers?
Brooks Fuller: Sure. So, North Carolina has a pretty broad public records law that covers all manner of documents that are created or received during the course of public business and it says that those records are the property of the people of North Carolina and actually, anybody who requests them. So, it extends even further than that. And those records are subject to disclosure unless a specific provision in state law allows them to be exempt. Until now.
De La Canal: And does this include emails, texts? What other kinds of records are we talking about?
Fuller: Absolutely. It includes documents, draft documents, text messages, slide decks, emails, phone logs — pretty much anything that you can imagine fits the definition of a document, even including metadata and files that are electronic in nature.
De La Canal: So let's talk about this new provision. It says that lawmakers, while in office or after leaving office, “shall not be required to reveal or to consent to reveal any document, supporting document, drafting request or information request made or received by that legislator while a legislator.” That sounds like it gives lawmakers a blanket exemption for giving any information to the public.
Fuller: It does. It gives them full discretion to decide whether they want to release certain records that would otherwise be subject to disclosure. Like you mentioned, it covers documents and supporting documents. And just like that definition is really broad in the preamble of the public records law, it's really broad in this provision too, and it means that it covers basically everything under the sun.
De La Canal: And I guess that would include information about the redistricting process and how legislative maps are redrawn.
Fuller: It even includes that. So none of this is going to see the light of day unless a legislator either decides that they want to make it public or they're — maybe not forced to in litigation because it probably even covers that — but when other information comes to light during the long slog of elections-related litigation that's going to continue in this state and others.
De La Canal: Republican Senator and Chief Budget Writer Brent Jackson has said that this is simply codifying a decades-long practice of lawmakers claiming legislative privilege to keep some documents private. What's your response?
Fuller: It's not doing that. We do not have a legislative privilege provision in our state constitution like a lot of other states do. That's why it's happening today and hasn't ever happened before, and we have no court cases that say that there is a full blanket legislative privilege. Instead, what we've had is a number of different provisions in state law that have exempted very specific records from disclosure but have never given a legislator permission to withhold all records simply because they're a legislator.
De La Canal: What do you see as the potential implications of this being, and do you see this potentially going to?
Fuller: Well, I don't know that I see it going to court, let's answer that first.
The General Assembly does have the ability to craft the definition and the scope of the Public Records Act, just like they did when they passed it initially many decades ago. So basically, what it means is that legislators now have the ability to curate whatever narrative they would like through public documents. They can't be compelled to release public records of their activities that would have otherwise been subject to disclosure, so they get to completely set the agenda and set the narrative for documents that are released.
I think the most likely result is that this will really undermine the ability of the press to inform the people of North Carolina about what's going on in the General Assembly in ways that they typically would have. It will undermine litigation efforts that relate to legislative activity, some of which are ongoing, some of which are sure to come down the pike later. It will basically create a black box over there in Raleigh, where it's difficult to get good, verifiable, authentic information — except through reporting. You can't get it through the public records process any longer.