Turning public records into private assets

By on October 6, 2023

New law shields NC legislators from outside scrutiny

(Shutterstock)

Good luck obtaining public records to see what state lawmakers are up to in Raleigh.

An amendment slipped into the new state budget bill absent debate or notice will allow General Assembly members to decide what, if any, of their records — present or future — will be available to the public. The measure will also grant state lawmakers the right to destroy their once-public records, or if they’re so inspired, to sell them.

“It gives them carte blanche to share or not share their public records,” Brooks Fuller, director of the nonpartisan North Carolina Open Government Coalition, said in an interview. “You can bet that the documents that they release will be mundane or flattering.”

Under the changes to North Carolina public records law, which went into effect at midnight on Monday Oct. 2 each legislator would not be required to reveal “any document, supporting document, drafting request, or information request made or received by that legislator while a legislator.”

Essentially, that means that the state’s lawmakers are exempted from the state’s current public records law, which provides public access to all documents, photographs, film, audio recordings and electronic data made or received in connection with public business done by public officials, agencies or other public units of government in the state.

“So it’s freedom of information for me,” Fuller said, “not thee.”

As far as Phil Lucey, executive director of the N.C. Press Association, is aware, he said no other state has such limits to the public records of its lawmakers. “This puts us at the bottom of the barrel,” he said in a recent interview.

According to a provision of Chapter 132 of the General Statutes, “The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people.”

The public records law is still in effect; without future repeal or amendments, it just won’t apply anymore to the General Assembly records.

Under the law, legislators always have been considered custodians of their own records, but they could not withhold a record without citing and defending certain exemptions, such as personnel matters or attorney-client communication. Now, according to the amendment in section 27.9 of the state budget, the legislators will decide for themselves which of their records should qualify as a public record. If records are deemed not public by the lawmaker, that lawmaker is free to withhold, destroy or sell those records.

To State Sen. Graig Meyer, an Orange County Democrat who had previously served four terms in the N.C. House of Representatives, it is especially unusual — and disturbing — that lawmakers can put up for sale their records produced while doing the state’s business.

“How do I get to sell it?” he wondered. “What and to whom? Can I sell it to cover up my misdeeds? Can I sell it [to media representatives] because I want to make a profit from what [they] want? And then who does the check get written to? To me directly? Do I get to benefit personally from it?”

As the new provision is written, it does not specify any requirements for custodians who decide to destroy or sell their legislative records.

“It is absolutely shocking, I think, to the average person that I would be able to take records from my public service and personally profit off of them,” Meyer said. “The idea that I could have a whole bunch of records of me communicating with casino gambling executives that I want to keep out of the public view. And so I can sell them to that casino company so that they can own our conversation and it wouldn’t be public?”

Meyer said that Republican colleagues have told him that the provision was inserted late in the budget process without being reviewed even by the appropriation chairs. Considering that it came on the heels of the controversial and failed casino legalization effort, Meyer said he doesn’t think the timing of the records change was coincidental.

But Republican House Speaker Tim Moore told reporters that the new provision would allow legislators to filter out unreasonable and burdensome requests.

“I think the way it’s written, I’m told, is structured in a way that’s fair, that makes sense,” Moore said in a Sept. 21 AP story.

Although Rep. Edward Goodwin, a Republican who represents House District 1 in northeastern North Carolina, said in an interview that he understands concerns that politicians have about public access to some records. But he believes there has to be a balance when you’re considering the value of open government laws.

“It probably should be done more than it is,” he said about open records, adding, “I don’t know many who would say that.”

Yet, Goodwin said he has seen that public records also can be used in destructive or intrusive ways under certain circumstances “Transparency is a good thing when it’s used for proper purposes,” he said. “But transparency can also be used in a different way that’s not so good.”

State Senator Norman Sanderson, a Republican who represents Senate District 1 and has been an advocate for open government, and Rep. Keith Kidwell, a Republican representing House District 79, did not respond to messages left on their office or cell phones.

Lucey, with the N.C. Press Association, said the association had barely any notice of the provision before the budget bill was approved, and does not know who is behind it.

“Nobody has raised their hand to take ownership,” he said. “That says something right there, They’d rather hang out in the recesses of some dark corner.” This is not just a tweak to the open government law; it’s a “very broad” exemption, Lucey added, that can shut down access to information about how taxpayers’ dollars are spent and how state laws are implemented, among countless other actions taken by lawmakers.

“It’s all the work of the General Assembly,” he said.  One example Lucey cited was the decision-making process and discussion that goes into creating new redistricting maps. “That is no longer accessible to the public,” he said.

Lucey said that he expects that the law will likely be challenged when an individual or an organization is denied General Assembly records and files a lawsuit. So far, there has not been a response to a letter signed by the press association and the Carolina Journal that was sent to members of the General Assembly asking for the provision to be rescinded, he said.

“The documents held by members of the General Assembly are literally the public record of what happens in North Carolinians’ government,” Donna King wrote in a Sept. 21 editorial in The Carolina Review. “Allowing that information to be shielded from public view perpetuates the skepticism of government that has been building in recent weeks and months.”


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Comments

  • 102

    Power corrupts and ultimate corrupts ultimately. Welcome to corruption, it’s rampant in government, just look at the president in power of our country

    Friday, Oct 6 @ 5:56 pm
  • Pearl

    This is what happens when you vote for MAGA candidates.
    We are becoming a TALIBAN state and those voters are not smart enough to see they are losing all their other rights just because they say YEAH to guns.

    Friday, Oct 6 @ 6:39 pm
  • Obxserver

    So much for finding out how and who is behind the Dare no town-zoning $35,000,000.00 “essential worker housing” honey pot and how it got “mysteriously” added to that same budget. Your tax dollars at work thank you very much!

    In the memorable words of the Wicked Witch of the West: What a world, what a world!

    Friday, Oct 6 @ 7:22 pm
  • Frank

    Criminals covering their tracks. I really, really dislike politicians. The vast majority of them, regardless of party affiliation, are nothing more than mafia gangsters.

    Friday, Oct 6 @ 8:14 pm
  • noise

    This should be national news. And even more so if this linked to the affordable housing shenanigans. There should be some noise on the NC General Assembly steps!

    Friday, Oct 6 @ 9:41 pm
  • noise

    Actually, I guess this did make national news as it was done when they were covering up the map gerrymandering.

    Friday, Oct 6 @ 10:09 pm
  • OBX Andy

    Open, transparent government is government of the people, by the people and for the people. Legislative actions without notice and public review are usually not in the public interest. Hopefully this unfortunate change in freedom of information will be corrected.

    Friday, Oct 6 @ 10:54 pm
  • Fuarock

    Oh Boy.

    I’ve been saying it for years.

    We’re not gonna vote our way out of it.

    Friday, Oct 6 @ 11:42 pm
  • JDodge

    I would say this is truly astonishing, however seems par for the course lately coming from Republicans. Talk about abuse of power and lack of transparency coupled with profiteering, it’s extremely disturbing. Everyone should be outraged. Power indeed corrupts!!

    Saturday, Oct 7 @ 6:44 am
  • Steven

    The kicker is that that bill specifically named Coastal Affordable as the only firm allowed to contract these ‘developments’

    Saturday, Oct 7 @ 6:51 am
  • outis

    Wow. The corrupt Republican Legislature in Raleigh just can’t get enough of taking away the rights of NC citizens. Recently, they try to take away the right of Dare County citizens (just Dare County mind you) to decide what gets built next door to them. Now they have taken away the right of NC citizens across the state, to see what the legislators have been doing behind closed doors, by making those public records not public anymore. And on top of that, while you the taxpayer can’t see those records anymore, the legislators can sell the records to the highest bidder, so that people with money can see the records, but not the average citizen.
    What’s next? That corrupt Republican Legislature will sneak a bill in somewhere that says they don’t have to reveal what their voting record is anymore? Or they don’t have to run for reelection anymore? They will be “Legislators for Life” from now on? And while they are at it, make it a crime to complain, or protest about that. Then they can shut up those pesky people who complain about it, by having them arrested and thrown in jail.
    Farfetched? Don’t count on it. Elect them all right out of office, before it is too late!

    Saturday, Oct 7 @ 6:58 am
  • Greg

    This is just more from the right wing that seeks to gain minority rule. The current gop in the legislature is all about consolidation of their power over local governments. The gop myth of smaller less intrusive government is just that. A Myth. These people are enemies of the Constitution.

    Saturday, Oct 7 @ 8:13 am
  • Freenusa

    The corrupt getting more corrupt. Now they can destroy the evidence and it be perfectly legal. Poof, no accountability and you serfs, mind your own business because we are in control now. We are losing our state and country at the same fast!

    Saturday, Oct 7 @ 11:59 am
  • Voting

    IMO why folk should vote person not party. NC legislature is “empowered” since they can by numbers override this governor’s veto- that’s not balance even if reverse and democratic Legislature and R governor

    Regardless party of governor or legislature majority there ought to be balance. The writing was on the wall when even judicial candidates now with party affiliations.

    Saturday, Oct 7 @ 10:15 pm
  • Look@see

    Kinda funny watching dims hirl insults at Republicans while flushing America down the toilet on a world wide scale.. you people are naive and part of the problem. It’s both sides screwing you out of your rights but you’re to busy playing tribalistic blame games to pull your head out of your backside

    Sunday, Oct 8 @ 5:34 pm
  • Greg

    Look@see is being pulled into the very wealthy cartel in our country that seeks to destroy the Constitution. That cartel prefers to work behind closed doors as they seek to violate the law. There is a place called The Kremlin where these techniques have been almost perfected.

    Monday, Oct 9 @ 10:50 am
  • Travis

    Shenaniganary of the highest order.

    If you believe in something enough to propose it as a law, then stand proudly behind it and explain your reasons.

    Hopefully this one will be taken up in the courts and found to be unlawful because the GA is certainly not going to change it.

    Monday, Oct 9 @ 11:12 am
  • Daniel

    The NC Republican led legislature is spitting in the face of democracy, both nationally and in the states. Instead of winning the vote with ideas and forward looking policy positions, they gather in the dark of night while the rest of us are sleeping to pass laws without debate or earnest discussion. This is the hallmark of corrupt leadership. The Republican NC legislature is unashamedly corrupt and has demonstrated how willing they are to force their corrupt conservative agenda on everyone without debate. It’s disgusting, and it is eating away at the democracy our forefathers created and and grandparents fought and die for.

    Monday, Oct 9 @ 3:55 pm