Among the policy changes in the 2023 state budget is a small mention of public records that has escaped notice by nearly everyone, except journalists. In section 27.9, a small paragraph from bill writers empowers records “custodians” at the NC General Assembly to determine what qualifies as a “public record” and what does not. That custodian is also permitted to destroy documents that he or she deems to not be a public record.
It must be noted, that state lawmakers are considered “custodians” of their own records.
GENERAL ASSEMBLY RECORDS ARCHIVING
SECTION 27.9.(a) G.S. 121-5 is amended by adding a new subsection to read: “(d1) General Assembly. – 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. When requested by the Legislative Services Officer, the Department of Natural and Cultural Resources shall assist in the preparation of an inventory of the records to which the request applies.”
SECTION 27.9.(b) This section is effective when it becomes law.HB 259, 2023 Appropriations Act
North Carolina’s public records laws already allow lawmakers to claim their records are exempt, but now the records could be destroyed, denying citizens the right to public scrutiny of their government. The budget amendment applies to state lawmakers, but public records are critical to governmental transparency at all levels.
“North Carolina’s public records law exists so the state’s citizens can know what goes into the laws, regulations, and government decisions that affect their lives,” said Andy Jackson, director of the John Locke Foundation’s Civitas Center for Public Integrity. “There are already provisions exempting things such as personnel records from records requests. It is problematic that members of the General Assembly are on the edge of making themselves functionally exempt from the public records law by giving themselves the power to unilaterally determine if a document should be a public record or not. I hope that provision [Section 27.9(a)] is removed before final passage of the budget.”
In last week’s decision in the dispute between WBTV in Charlotte and city officials over public records, a three-judge panel on the Court of Appeals was unanimous in support of WBTV. Judge Allison Riggs, the new Cooper appointee to the NC Supreme Court, wrote that the City of Charlotte’s decision to keep their records with a private third party did not shield them from the Public Records Act. The city had 2020 surveys filled out by candidates of the city council, and WBTV wanted to see them. The city waited more than 16 months to produce them. The station’s owner not only gets the surveys, they can now collect collect legal fees from the city as well.
The Carolina Journal still has countless records requests in to agencies across state government requesting information on pandemic shutdowns, methodology for the COVID dashboard numbers, and other issues that are many news cycles past. Government custodians of public records seem to believe that the public records request process is a waiting game. They often don’t respond or respond so late and so inadequately that journalists are forced to move on to newer stories.
That strategy has worked. Most requests are followed up with a threat of legal action. Public records consultants sell their advice to journalists who are hitting a bureaucracy brick wall. Now custodians won’t even have to wait. They can respond right away that a document was destroyed because its custodian didn’t consider it a “public record.”
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 budget amendment “…explicitly expands legislators’ privilege to exempt themselves from public records law. Stating 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. It will broadly expand legislative privilege to public records law.”
As lawmakers press green or red this week on the state budget, they do so after weeks, even months, of negotiations, cell phone calls, texts from constituents, and soul searching. Public records are not just the food of “gotchas” from watchdog groups.
“We need more transparency, not less,” said Jon Guze, senior fellow in legal studies for the John Locke Foundation. “Rather than restricting North Carolinians’ right to know what their government is up to, the General Assembly should consider strengthening that right by adding a public records provision in the state constitution. Florida’s constitution provides a good example.”
The documents held by members of the General Assembly are literally the public record of what happens in North Carolinians’ government. Allowing that information to be shielded from public view perpetuates the skepticism of government that has been building in recent weeks and months.