On Friday, Sept. 22, the General Assembly passed a budget which contains a new provision that would allow lawmakers total discretion over destroying records. Many in the media and even some lawmakers have taken issue with the provision; however, the John Locke Foundation has proposed a “fix” for lawmakers to consider when making technical corrections to the state budget.
Following the release of the final state budget, the North Carolina Press Association and the North Carolina Association of Broadcasters immediately sent a call out to member journalists across the state urging them to contact their state senator.
Phil Lucey of the NCPA told members that the language “…explicitly expands legislators’ privilege to exempt themselves from public records law.”
Carolina Journal Editor-in-Chief Donna King wrote an op-ed on Thursday expressing opposition to this change from North Carolina Republicans.
“Allowing that information to be shielded from public view perpetuates the skepticism of government that has been building in recent weeks and months,” King wrote.
Section 27.9.(a), on page 531 of the budget, says 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.”
One page earlier, “custodian” is explained to mean “legislator” in a context pertaining to documents.
“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.”
Dr. Andy Jackson, Director of the Civitas Center for Public Integrity at the John Locke Foundation, has proposed revised language to fix what he calls “an unwelcome addition to the budget.”
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…”
“…the custodian of any General Assembly record shall determine, in the custodian’s discretion,
whether a record is a public record andwhether to turn over a record to the Department of Natural and Cultural Resources…”
“That change would still leave [reports] as potential public records for all other purposes,” Dr. Jackson said.
Senate leader Phil Berger, R-Rockingham, said that the provision was intended to address a dispute between Department of Natural and Cultural Resources and the legislative services officer regarding “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 the language should not be interpreted as increasing lawmakers’ ability to keep records from the public.
Others have noted that the combination of North Carolina’s weak public records laws and legislative immunity already makes it difficult to obtain records from lawmakers.
Dr. Jackson also says, “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.”