NC lawmakers would be able to keep more records secret with new provision in state budget

New provisions in the state budget expand lawmakers’ exemptions to public records law and could potentially give them full discretion to determine which of their records are public, a move open government advocates say is a drastic reinterpretation of years of precedent in public records law.

“This is one of the most brazen and troubling rollbacks of access to public records as it pertains to the General Assembly that I’ve ever seen,” Brooks Fuller, director of the NC Open Government Coalition, said.

One of the provisions, which was first found in a draft copy of the budget and left unchanged in the final bill, says “the custodian of any General Assembly record shall determine, in the custodian’s discretion, whether a record is a public record.”

Republican leaders told reporters that this section was intended to have a narrower scope, applying only to archival records. However, a new section was added in the final budget, which appears to explicitly expand legislative privilege to public records law.

It specifies that lawmakers, even those who are no longer in 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.”

“This provision covers any document or supporting document made or received by a legislator during their time in office,” Fuller said. “So it basically covers everything that a legislator would do in the scope of their public service and makes it privileged.”

Asked why legislators are exempting themselves from public records law, House Speaker Tim Moore, a Kings Mountain Republican, said “I think it’s important to clear up any ambiguity.”

Pressed on whether lawmakers will have full discretion over which of their records are released, Moore said “I don’t know if it’s quite that way, you’d have to ask the lawyers.”

Legislators are already considered to be custodians of their own records, but current law only allows them to withhold records if they claim an exemption to the law, Fuller said. These new provision could negate the need for any exemption at all and give lawmakers full authority to determine if any of their records should be public.

“It could essentially render the public records law meaningless as it relates to the General Assembly,” Fuller said.

The first provision, which gives lawmakers discretion over which records are public, is not clear about whether it extends to all public records or just those related to the archival process. Interpreted narrowly, it could mean lawmakers have more authority to determine which of their records become part of the historical archive managed by the Department of Natural and Cultural Resources. Interpreted broadly, it could give lawmakers discretion to deny public records requests from anyone.

Senate leader Phil Berger told reporters on Wednesday that the provision is intended to address a dispute between DNCR and the legislative services officer, who handles some archival duties. The issue regarded “whether or not the executive branch should have the ability to tell the legislature that certain things have to be saved in order to be archived,” Berger said.

Asked if the section was meant to give lawmakers the ability to have more discretion over records requests from the public, Berger said, “That’s not my understanding of what the intent was. That would not be the way that language should be interpreted.”

Moore, also asked by reporters if the section was intended to let lawmakers decide what records to release to the public, said, “I don’t know if I would characterize it in quite that way.”

“I think it clears up some ambiguity and some gray areas and that way we all know the rules of the road,” he said.

Berger and Moore’s comments came before the new language — which appears to broadly expand legislative privilege to public records law — was released to the public.

Current law says that state officials can only destroy or dispose of records if they certify to the Department of Natural and Cultural Resources that the record no longer has any value and the department certifies the same. The new provision appears to allow lawmakers to decide not to turn records over to DNCR, without the department’s certification.

“The proposed amendment comes without forewarning and poses a significant threat to the public’s right to see public records in the hands of the General Assembly when records are archived,” Phil Lucey, executive director of the North Carolina Press Association, said in an email to members of the NCPA and North Carolina Association of Broadcasters. “The NCPA, and the NCAB, aim to turn back this unprecedented and unjustified attempt to change the public’s right to know in North Carolina.”

The ACLU of North Carolina also came out in opposition to the change.

“The government is supposed to be by and for the people,” Liz Barber, director of policy and advocacy for the ACLU of NC said in a statement. “Open records laws are critical components of protecting democratic institutions and ensuring transparency and accountability. North Carolinians should be outraged that their government is trying to close the door on them by keeping their documents from public scrutiny.”

Legislative correspondence played a key role in exposing the behind-the-scenes effort in 2005 to steer the newly formed state lottery’s operations to contractor Scientific Games. Emails The News & Observer obtained via a public records request to then House Speaker Jim Black’s office revealed that his unpaid political director, Meredith Norris, was lobbying on behalf of the company.

Norris had not registered as a lobbyist for the company, as state law required. The emails showed that she had set up a dinner between Black and a company vice president and helped recruit lawmakers and others for a yacht cruise with the vice president during a legislative conference in Seattle. She and the vice president, Alan Middleton, received misdemeanor convictions for lobbying law violations.

Berger and Moore in 2021 created a new policy allowing lawmakers to destroy emails older than three years, WRAL reported.