Included within the $30 billion North Carolina state budget, which has now become law, is a provision allowing lawmakers to exempt themselves from the state’s public records law and keep their own records secret.
WFAE spoke with Brooks Fuller, director of the North Carolina Open Government Coalition, to learn more about the possible impacts of this new provision.
Up until this new budget became law, North Carolina had a broad public records law that covered a wide range of documents that were created or received during the course of public business and were considered “the property of the people of North Carolina and … anybody who request[ed] them,” Fuller said. Those records were subject to disclosure unless there was a provision in state law that allowed them to be exempt – now they are all exempt.
Records covered by the public records law included emails, texts, documents, draft documents, slide decks, phone logs and “pretty much anything that you can image fits the definition of a document, even including metadata and [computer] files,” Fuller said.
The new provision on public records states that lawmakers, while in office and after leaving office, “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.”
According to Fuller, this means that lawmakers now have “full discretion to decide whether they want to release certain records that would otherwise be subject to disclosure.” Much like how the previous law covered a broad range of public records, so does this new provision. As Fuller put it, “This provision … covers basically everything under the sun.”
The new law will even cover information about the redistricting process and how legislative maps are redrawn.
“So none of this is going to see the light of day unless a legislator either decides that they want to make it public or they’re — maybe not forced to in litigation because it probably even covers that — but when other information comes to light during the long slog of elections-related litigation that’s going to continue in this state and others,” Fuller explained.
Chief budget writer and Republican Sen. Brent Jackson previously told reporters that this provision is simply putting into law a decades-long practice of lawmakers claiming legislative privilege to keep some documents out of the public’s view.
As Fuller explained it, Jackson is either lying or doesn’t understand North Carolina law.
“We do not have a legislative privilege provision in our state constitution like a lot of other states do. That’s why it’s happening today and hasn’t ever happened before, and we have no court cases that say that there is a full blanket legislative privilege,” he said. “Instead, what we’ve had is a number of different provisions in state law that have exempted very specific records from disclosure but have never given a legislator permission to withhold all records simply because they’re a legislator.”
Asked whether this provision will end up in court, Fuller said he’s unsure that it will because North Carolina’s “General Assembly does have the ability to craft the definition and the scope of the Public Records Act.”
“They can’t be compelled to release public records of their activities that would have otherwise been subject to disclosure, so they get to completely set the agenda and set the narrative for documents that are released,” he continued.
Much like how Republicans crafted the budget in private, behind closed doors and without any input from Democrats or the public, they will now be able to do the same thing with everything else they do and they will have no obligation to let the public (or reporters) have any insight into how they came to the decisions they will come to on legislation.
Fuller painted a bleak picture of what the future will look like for North Carolina.
“I think the most likely result is that this will really undermine the ability of the press to inform the people of North Carolina about what’s going on in the General Assembly in ways that they typically would have,” he said. “It will basically create a black box over there in Raleigh, where it’s difficult to get good, verifiable, authentic information — except through reporting. You can’t get it through the public records process any longer.”
It shouldn’t come as any surprise that the party of no transparency would want to operate under such a law, but it doesn’t make it any less disappointing that they have so little respect for their own constituents that they had to craft a law to shield themselves from the public seeing how they do the job they were elected to do.