Legislative Gutting of Public Records Law Can — and Should — Be Fixed | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the John Locke Foundation. The author of this post is Dr. Andy Jackson.

• Legislators added a provision to the state budget that would make them functionally exempt from public records law
• Government transparency is a defense against corruption and misfeasance
• The General Assembly should narrow the language of the public records exemption and consider amending the North Carolina Constitution to require more transparency

    The North Carolina General Assembly finally passed a budget on September 22. While its passage is welcome, it includes a troublesome provision that reduces legislative transparency. Legislators should reconsider the language of that provision during the 2024 short session.

    An Unwelcome Addition to the Budget

    Section 27.9.(a), on page 531 of the 625-page budget, includes the following:

    Notwithstanding any other provision of this section or order, rules, or regulations promulgated or adopted thereunder, the custodian of any General Assembly record shall determine, in the custodian's discretion, whether a record is a public record and whether to turn over to the Department of Natural and Cultural Resources, or retain, destroy, sell, loan, or otherwise dispose of, such records.

    A person reading that may wonder who the custodians of General Assembly records are. The budget also provides an answer to that question in section 27.7.(e) of the same bill: "Each legislator, while in office and after leaving office, shall be the custodian of all documents, supporting documents, drafting requests, and information requests made or received by that legislator while a legislator."

    North Carolina law (§ G.S. 132-1) broadly defines public records as anything, "regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of public business by any agency of North Carolina government or its subdivisions." In essence, any document produced by a government entity, including emails and phone logs, is a public document.

    Senate leader Phil Berger said that the provision was intended to settle a disagreement with the North Carolina Department of Natural and Cultural Resources (which archives public records) over whether that executive branch agency had the power to "tell the legislature that certain things have to be saved in order to be archived." Indeed, the section granting legislators discretion over whether a record is public is an amendment to the statutory chapter on Archives and History.

    Nevertheless, the language of the section grants legislators the power to determine if a record is public or not for any reason, not just for transmission to the state archives. No record produced by legislators is safe under this language.

    Why We Need Government Transparency

    Why should we be concerned that the General Assembly is about to become less transparent?

    While there are exceptions, more transparency tends to lead to more accountable and higher-quality governments. A 2003 study backed by the World Bank found that countries with freedom of information laws and greater transparency tend to "have better quality governance." Likewise, the public policy nongovernment organization Freedom House noted that transparency and government accountability "ensure that malfeasance is exposed-and that failed or harmful policies are swiftly corrected."

    Public records laws, which require government officials to provide documents to people who request them, are fundamental to transparency. One example is a 2021 Pulitzer Prize-winning New York Times article on civilian deaths caused by US air strikes, an exposé made possible by analyzing 5,400 pages of Defense Department records acquired through the federal Freedom of Information Act.

    Access to public records has aided my work at the John Locke Foundation. For example, my research on 1,700 "ghost voters" (people who cast ballots despite being removed from voter rolls) who voted in the 2020 election was greatly enhanced by the information I obtained through two public records requests to the North Carolina State Board of Elections.

    Those kinds of investigations become more difficult, if not impossible, if government officials can deny access to records.

    Providing Public Access to Legislative Records

    While the public records language in the budget is a problem, it is a fixable problem. If the intent behind the bill is to settle a dispute over archiving records at the Department of Natural and Cultural Resources, as Sen. Berger said, then the language can be narrowed as part of a technical corrections bill during the General Assembly's 2024 short session. (Technical corrections bills are designed to fix unnoticed problems in prior bills.)

    A possible correction would be to change:

    "...the custodian of any General Assembly record shall determine, in the custodian's discretion, whether a record is a public record and whether to turn over to the Department of Natural and Cultural Resources..."

    to:

    "...the custodian of any General Assembly record shall determine, in the custodian's discretion, whether a record is a public record and whether to turn over a record to the Department of Natural and Cultural Resources..."

    That change would still leave them as potential public records for all other purposes.

    The reference to "retain, destroy, sell, loan, or otherwise dispose of, such records" should also be removed since the question of what else legislators might do with their records is irrelevant to the question of whether they must turn them over to the Department of Natural and Cultural Resources.

    Legislators can - and should - quickly correct the public records language in the budget if they are willing to do so.