In this column, Brooks Fuller, director of the North Carolina Open Government Coalition and assistant professor of journalism, assesses the impact of recent legislative changes that exempt many records of the General Assembly from public scrutiny.
By Brooks Fuller
North Carolina’s Republican legislative majority, joined by a handful of Democrats, has decided that the state’s public records law shouldn’t apply to them.
A supermajority of the General Assembly passed a sweeping legislative privilege Friday allowing lawmakers to keep secret any document made or received during their public service “in all instances.” The move came during the final days of grueling, months-long budget negotiations.
In a devastating blow to public access, lawmakers wiped out one of North Carolinians’ primary tools for government accountability and gave themselves permission to operate almost entirely in the dark.
Proponents of so-called “legislative privilege” argue that robust protections from public records requirements allow legislators to deliberate freely about policy concerns. But N.C. law already made confidential legislators’ communications with staff related to legislative drafting and information requests — and it has never applied to private communications made by phone or in person.
Lawmakers already enjoyed immense freedom to engage in private deliberations. What they didn’t have, until now, was permission to hide the entire scope of their public work from the public they serve.
Shielding legislative documents from public view does not itself cause corruption, but it creates a perfect environment for it to incubate. Without the legal duty to provide records made or received during their public service, lawmakers have little incentive to prioritize public accountability. They have every incentive to padlock records they prefer not to share.
So why make this move now? One clue lies in a one-line provision buried in the 625-page budget bill that revokes public access to information about electoral maps. The law was an exception to the general rule that legislative drafting requests can be kept private. It gave the public the right to obtain a narrow category of communications and documents related to the redistricting process as soon as a voting map became law. It also gave the public a sliver of daylight into the process of representative democracy, such as it exists in North Carolina. No longer. That window has closed, and North Carolinians are worse off for it.
North Carolina has been at the center of costly, seemingly unceasing litigation challenging Republican-drawn legislative maps and voter ID laws. Under the newly passed legislation, the public will be shut out of that process unless lawmakers choose to share records or unless information is uncovered through reporting or litigation.
To compound the problem of gutting the public records act, no one wants to claim responsibility for doing it. When asked directly, two of the most powerful people in N.C. politics, House Speaker Tim Moore and Senate leader Phil Berger, claimed they didn’t know how the language got into the budget.
Moore told the Associated Press, “I think the way it’s written, I’m told, is structured in a way that’s fair, that makes sense.”
Told by whom? Fair to whom? Makes sense how?
The top state representative wouldn’t say, except to repeat the talking point that public records requests cost taxpayers money.
North Carolina law makes public records “the property of the people” and requires government officials to produce public records. We pay for our records with our money and the unfathomable time it takes some government agencies to comply with the law. We are often forced to sit in the dark and contemplate lawsuits to pry information from our elected and appointed public servants.
Public officials do not get to insult the public by telling us that giving us our property is too cumbersome or inconvenient for them.
Voices on both sides of the aisle know this policy will devastate public knowledge about and “public trust” in government and have said so.
Government transparency is not a partisan issue, but it is a power issue. And N.C. Republicans currently wield immense power up and down state government. So during a last-minute, midnight-to-early morning session and amid minimal debate, they took power from the people and kept it for themselves.
Views expressed in this column are the author’s own and not necessarily those of Elon University.