Recently, a coalition of media outlets led by the Carolina Journal sent a letter to all North Carolina lawmakers opposing language in the state budget that grants legislators broad discretion, as custodians of their own public records, to determine what qualifies as a “public record.” Further, it allows for destruction of documents lawmakers deem not public records.
“As organizations committed to fostering an informed citizenry and ensuring that government actions are subject to public scrutiny, we believe the ability to access public records is fundamental,” the letter, signed by CJ and the North Carolina Press Association, reads. “Public records provide valuable insights into the legislative process, government decision-making, and the actions of elected officials. They are the cornerstone of government transparency, allowing citizens to hold their representatives accountable and make informed decisions about their governance.”
While the letter outlines many reasons we are alarmed by this measure, it can all be boiled down to one: We just want good government.
In this latest budget, we see a pretty clear compare-and-contrast scenario when it comes to the roles of oversight by the legislature and watchdog by the press.
On the one hand, lawmakers have been blasted for providing the Joint Legislative Commission on Governmental Operations expanded access to documents under its authority to oversee local governments and nongovernment entities that receive state funds. The 42-member committee would have access to records for state contractors or any group dealing in state money.
As the stewards of taxpayer money, lawmakers have an obligation to ensure that our money is spent appropriately. That obligation is part of the commitment they each make to good government.
We look no further than the debacle that is Gov. Roy Cooper’s Office of Resilience and Recovery. Nearly a decade after Hurricanes Florence and Matthew, victims still live in hotels because the office has mismanaged the contracting and rebuild phase. Investigative hearings have yielded little, and lawmakers say that access to documentation is why.
On the other hand, lawmakers are saying their own records face a different test, hence the reason for our opposition. Their records require just as much scrutiny. North Carolinians have the right to know.
Public records law already allows some exemptions, but now the records could be destroyed, denying citizens the right to public scrutiny of their government. The budget provision applies to state lawmakers, but public records are critical to governmental transparency at all levels.
In September’s decision in the dispute between WBTV in Charlotte and city officials over public records, a three-judge panel on the state Court of Appeals was unanimous in support of WBTV. Judge Allison Riggs, the new Cooper appointee to the NC Supreme Court, wrote that Charlotte’s decision to keep its records with a private third party did not shield them from the Public Records Act. City council members filled out surveys, and WBTV wanted to see them. The city waited more than 16 months to produce survey results. The station’s owner not only gets the surveys, but they can also now collect legal fees from the city as well.
The Carolina Journal still has countless records requests in to agencies across state government. Requested information is tied to pandemic shutdowns, methodology for state 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 hit a bureaucratic brick wall. Now custodians won’t even have to wait if they are members of the General Assembly. They can respond right away that a document was destroyed because its custodian didn’t consider it a “public record.”
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 years.
In the coming legislative session, we urge state lawmakers to open public access to records by enshrining the public’s “right to know” through a state constitutional amendment. We need more transparency, not less.