“Chapel Hill professors question group’s public records requests.”
“Governor and NC media settle dispute over McCrory’s records.”
“Public records lawsuit filed against state Rep. Beverly Boswell.”
All real headlines. All spanning North Carolina’s news cycles over the past decade. All present important questions about transparency and access to government records, which are, by statute, open to everyone — not just journalists — for inspection.
Sunshine Week, March 10-16, exists to raise awareness of public records laws and encourage access to government. But that access is often stunted by misinterpretation or misuse of exemptions to transparency laws.
“The law is slowly losing ground, and it’s death by a thousand cuts,” said Jonathan Jones, a professor at Elon University and the former director of the N.C. Open Government Coalition; Jones left that position in February to pursue his own legal practice.
One more famous case involved “legislative privilege,” a legally unfounded provision state lawmakers have used to dodge records requests.
In January 2018, Craig Merrill, a resident of Kitty Hawk, filed a public records lawsuit against Rep. Beverly Boswell, R-Dare. Merrill requested official communications, such as emails and phone records, exchanged between Boswell and her constituents in House District 6.
Over nine months, Merrill requested the records 15 times.
Boswell refused to release them. Those documents, her office said, were protected under the umbrella of legislative privilege, an alleged provision that supposedly shields state legislators from public records laws.
“All records are not ‘public records’ even though those records may have been created, received or in the custody of a public official,” Boswell’s legislative assistant, Beth Strandberg, wrote in response to Merrill’s requests.
Strandberg said “requests from legislators to legislative staff, and documents prepared by legislative staff upon the request of legislators, are not public records.”
The lawsuit was settled out of court, setting no legal precedent for future cases. Legislators have since been slower to use legislative privilege as an argument for immunity against sunshine laws, but plenty of other legal exemptions make it difficult for the public scrutinize the business of its government, Jones told CJ.
What are public records?
North Carolina defines public records as paper and electronic documents, such as emails, letters, and sound recordings. Although the span of qualifying documents is broad, roughly 150 exemptions clutter Chapter 132 of the N.C. General Statutes, making it impossible for taxpayers to view items under any number of classifications.
Requesting a public record can be tedious and time-consuming. In North Carolina, anyone can request a record so long as the data doesn’t contain confidential information, such as personnel matters or ongoing criminal investigations. But simply making a request doesn’t mean the information will be disclosed in a timely manner, or at all. North Carolina’s public records law doesn’t specify a timeframe for complying with a records request, only that the records are reviewed as promptly as possible. It can be weeks, months, or even years before documents are released.
Sometimes government agencies decide against disclosing documents, citing issues of confidentiality or privileged information relating to trade secrets or legal matters. The only recourse for denied access is an appeal in court. Suing the government can be an intimidating job — especially for private citizens with limited resources.
“For the average resident, the idea of dropping thousands of dollars on an attorney and going to court over a refusal to get information is daunting and impractical,” Jones said.
Making public records truly “public”
The ideal solution to public record disputes would be for North Carolina to employ an access counselor or “ombudsman,” Jones said. The role would see an attorney reviewing public records disputes and determining whether the documents should be made public.
“Those types of reviews are essentially creating an independent review in government,” Jones said. “Those are quite effective where they are employed, because it’s no cost to the requester to seek that administrative review.”
If the access counselor determines the records shouldn’t be made public and the requester disagrees, both parties have the option of going to court.
For this to become standard practice in North Carolina, the legislature would need to change the public records law. So far, Jones said, there’s been little appetite to reform the process.
It’s one thing to have a law that allows access. It’s a completely different thing to have a functional system that makes access possible for all, said Brooks Fuller, director of the N.C. Open Government Coalition.
“That’s just one way that North Carolina, just like a lot of other states, is struggling. And I think a lot of it boils down to how adequately our government offices are staffed. How well [employees] are trained. [It also depends] on the technological interfaces that our citizens have to go through to get what they need.”
Some counties and cities have created web databases with searchable information, Fuller said. But those are sometimes clunky — and tough to navigate. The solution is a matter of keeping technology streamlined, seamless, and simple, he said.
“I’m an attorney who has practiced law and is in this position, and I have a [doctoral degree], and I cannot navigate for the life of me certain cities, municipalities, and register of deeds offices because of how broken they are, or how broken they feel.”
Updated technology seems expensive up-front, but modernizing systems and easing access to information is cheaper than settling lawsuits and paying lawyers’ fees, he said.
In many cases, public records requests — in and of themselves — may be considered a transparency failure on the part of the government, Jones said.
“I think there really is something to this idea that I shouldn’t have to ask for this information. It ought to be readily available.”