State lawmakers shroud open-records requirements

Local officials are still reeling over a little paragraph in the state’s 625-page budget in which lawmakers exempted themselves from public record requirements.

A single paragraph gives legislators in the N.C. General Assembly the power to determine what qualifies as a public record and what does not.

Section 27.7 of the 2023 Appropriations Act says that current and former legislators “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.” Under the state’s previous law, legislators were custodians of their own records but had to file a specific exemption to withhold records.

State Sen. Warren Daniel,  a Republican whose district covers the eastern portion of Buncombe County, says the provision will keep the legislature efficient and save the state money. “We receive very expansive requests where people may ask for every correspondence for every member of the General Assembly,” Daniel says. “These kinds of requests don’t help increase transparency; they are just expensive and slow down the legislative process.”

In addition to being able to withhold public records, another provision in the budget allows legislators to determine “whether a record is a public record.” Furthermore, if a document is not deemed public by the legislator, they can legally decide to “retain, destroy, sell, loan, or otherwise dispose of” the record.

“While the whole provision is problematic, I find it particularly concerning that lawmakers have been given the authority to sell their records,” says state Sen. Julie Mayfield of Asheville, a Democrat. “Is there a more effective way to enable misinformation than allowing a politician to sell records to anyone willing to cover up their mistakes and misdeeds?”

Daniel didn’t respond to requests seeking comment about the potential of selling records under this provision.

The provision received widespread criticism from state Democrats, media agencies and open-government advocates. In a joint letter to the N.C. General Assembly, the N.C. Press Association, the N.C. Association of Broadcasters, the Carolina Journal, Radio One Charlotte and others outlined objections and called on lawmakers to rescind the language.

“The newly introduced amendment grants custodians the power to determine what constitutes a public record and allows for the destruction of records that could otherwise be essential for transparency and accountability,” the letter reads. “This change effectively creates a situation in which state lawmakers, who are also considered custodians of their records, could exempt themselves from public records law, denying citizens their right to scrutinize their government’s actions.”

North Carolina law allows the public to obtain a variety of public records from the state government and its elected officials. According to the N.C. Public Records Act, in the General Statutes Chapter 132, public records include “all documents, papers, letters, maps, books, photographs, films, sound recordings, electronic data processing records, artifacts, or other documentary material.”

Supporters of the provision have said that the protections from public records requirements allow legislators to deliberate freely about policy concerns and upcoming bills. However, legislator’s communications with staff during the bill drafting process is already protected under previous public record law.

“North Carolina law already makes legislators’ communications with staff related to legislative drafting and information requests confidential,” says Brooks Fuller, director of the N.C. Open Government Coalition. “Lawmakers have immense freedom to engage in private deliberations. What they didn’t have, until now, was permission to hide the entire scope of their public work from the public they serve.”

“North Carolina public records, by definition, are the property of the people,” says state Rep. Caleb Rudow, a Buncombe County Democrat. “Public officials do not get to deny citizens their property because they think it is too cumbersome or inconvenient for them.”

Redistricting without transparency 

Another controversial provision tucked into the budget overturns state law that made legislators’ redistricting communications and drafting documents part of the public record once new electoral maps became law. “North Carolina has been at the center of costly, seemingly unceasing litigation challenging Republican-drawn legislative maps and voter ID laws,” says Fuller. “Under the newly passed legislation, the public will be shut out of that process unless lawmakers choose to share records or unless information is uncovered through reporting or litigation.”

While the state’s public records act grants broad exemptions for messages sent between lawmakers and their staff during the legislative drafting process, one statute included an exception for redistricting. “Electoral maps are the core of representative democracy. It’s critical to understand from the public’s perspective how rules related to voting and elections come into being,” says Fuller. “This was a really important carve-out, and it’s very clear from the way that it’s written that the General Assembly thought this was important to North Carolinians. Apparently that’s changed.”

Currently, North Carolina’s 14-member congressional delegation is evenly split between Democrats and Republicans. However, a new map approved by the state legislature Oct. 25 creates 10 likely Republican districts, three likely Democratic districts and one that appears to be competitive.

“North Carolina has always been a split state in terms of party lines,” says Rudow. “Now though, we have a world in which representatives get to pick their voters and whatever districts they need to win, all behind closed doors. Voters no longer have a say in who is elected because Republicans have drawn the districts in a way that exclusively favors them. That is not how democracy is supposed to work at all.”

Under North Carolina law, the new maps aren’t subject to a veto from Democratic Gov. Roy Cooper. However, many Democrats, including Rudow, have said that the new maps are likely to be the subject of lawsuits.

“Republicans have blatantly gerrymandered the state to serve their own agenda,” says Rudow. “You can be sure that a number of organizations will challenge the new maps. We have to protect our democracy, and [the new maps] go against its very nature.”