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NC lawmakers don’t have to disclose emails and other records

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North Carolina General Assembly building.

North Carolina state lawmakers do not have to release their emails and other communications to the public anymore unless they want to. That power was given to them by a provision buried in the state budget last year. The change, which was led by Republicans, marked a shift from just over a decade ago when the GOP led the charge for more transparency in state government.

Bryan Anderson of the Anderson Alerts newsletter wrote about it for the Assembly, and he joins me now.

Marshall Terry: So take me back to 2011, when Republicans regained control of the General Assembly for the first time in decades. What was their view on government records then?

Bryan Anderson: Back then, Republicans' view on this was 'we had just come into power and we got to effect some change and set a new agenda,' basically. There was a desire and an appetite from the Republicans when they retook control of the legislature to give North Carolinians a constitutional right to access public records and public meetings. And that would have essentially added some enforcement to state transparency laws by creating that constitutional right. And there were 33 Republicans back then that supported that effort, including six who are still in office. That includes House Speaker Tim Moore. But none of those same lawmakers support a similar effort. Democrats are doing this year.

Terry: OK, so how are Republicans defending this greater secrecy now?

Anderson: Right now, what they say is that this latest budget that they had proposed last year and enacted essentially codified existing practice where lawmakers would get a request and handle it on their own. And they are arguing that nothing has really changed in that respect.

They further say that there was some dispute between archives staff at the Department of Natural and Cultural Resources and the Legislative Services Office and the General Assembly over how records are retained and then transferred. And that this language included in last year's budget is trying to remedy such a dispute. Archive staff at the Department of Natural and Cultural Resources refute that and say, essentially, there's no such dispute.

Terry: Well, what do Democrats say — both about the change and also how these changes got through the legislature?

Anderson: The Democrats are very frustrated with the process. This was a small provision that was inserted into a 611-page budget draft. And then after transparency advocates expressed concern with those budget provisions, there were additional language that was added into it that gave lawmakers the unilateral ability to sell and destroy, withhold and release information as they see fit. And Democrats are concerned that it will lead to shenanigans and will embolden lawmakers who aren't forthcoming to take egregious actions or participate in questionable activities that the public wouldn't know about.

Terry: Now lawmakers can release emails and other records if they want to. And you conducted a test to see how many would do that upon request. What did you find?

Anderson: Well, I liken it to this asking a lawmaker to be willfully transparent at their own expense would be like asking me to run a marathon. Theoretically, it's possible. It's probably not going to happen. And even if it does, it's going to be a long, painful journey to get there. And for this records request process, what I essentially said was, 'Hey, if you're going to make yourself as least transparent as possible, I'm gonna request maximum transparency.'

And only a handful of lawmakers responded to my request for them to release all their communications. But then after that, I said, 'OK, well, how about one email of your choice? Just provide that to prove you're capable of responding to records requests.'

103 lawmakers were completely unresponsive to anything that I had requested, or even The News & Observer requested for a day's worth of emails. Nine lawmakers essentially responded but didn't provide records, and that leaves us with 58 lawmakers who responded. Those include 15 Senate Republicans, one House Republican and 42 Democrats. So, Democrats were far more responsive.

Terry: So just why do these changes matter? I mean, what does it mean for people like you and me and the media, but also just everyday folks as well?

Anderson: Everybody should care about this from all sides of the aisle. And public opinion polling shows that, overwhelmingly, 9 in 10 North Carolinians of all political persuasions think that state lawmakers should be held to the same transparency standards as other government employees that do have to turn over their records and can't destroy them unilaterally.

And why this matters is there have been scandals, questionable activities, that have occurred this century with Jim Black and corruption scandal, with lawmakers using concept maps for redistricting that were later destroyed or lost or misplaced. Plus, there was a voting bill in 2016 that had received some scrutiny.

And all these things came to light because of public records requests, because of emails or communications lawmakers released, or testimonies in court. And none of those instances would have happened today, because the public would likely have no ability to learn about them because lawmakers wouldn't turn over communications that would hurt them politically.

Terry: So lawsuits get filed all the time over laws passed in North Carolina. But that hasn't happened with these changes, despite the opposition. So what happens now?

Anderson: There could still could be a lawsuit. But from the folks I've talked with, they see a very unlikely chance that that effort would be successful because of the makeup politically of the state courts and lawmakers having the ability to enact laws as they see fit.

That leaves the public with an opportunity for a potential constitutional amendment that Democrats are offering to give them a right to access public records and public meetings. That likely won't happen because Republicans are resisting that effort. There's talk of Democrats offering an amendment to the state budget. Again, that effort would likely fail.

So, the short answer is it doesn't look good for transparency advocates right now. And there's very little that can be done this year. But if people go to the ballot box in November and elect state lawmakers that support transparency initiatives or statewide elected officials who want the General Assembly to be more accountable, then that might be folks's best shot at seeing some of this change.


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Marshall came to WFAE after graduating from Appalachian State University, where he worked at the campus radio station and earned a degree in communication. Outside of radio, he loves listening to music and going to see bands - preferably in small, dingy clubs.