Republican state lawmakers in North Carolina are attempting to exempt themselves from public records laws meant to safeguard transparency with a budget provision allowing them to keep any legislative document private — even after they leave office.
Tucked into the 625-page state budget that legislators have begun voting on fewer than 24 hours after its release is a section that First Amendment experts say would enable the General Assembly to conduct much of the public's work in secret.
Current and former state legislators would no longer be required to reveal any document, drafting request or information request they make or receive while in office. They would also have broad discretion to determine whether a record should be made public, archived, destroyed or sold.
"I think the way it's written, I'm told, is structured in a way that's fair, that makes sense," Republican House Speaker Tim Moore said of the provision.
Moore defended the policy to reporters on Thursday, noting that lawmakers often field unreasonably broad or cumbersome records requests that bog down government offices and cost taxpayers money. The changes, he said, would eliminate confusion and allow legislators to filter out those requests.
Once the budget measure gets two affirmative votes in the House and Senate — second round votes are expected Friday morning — it will go to Democratic Gov. Roy Cooper, who will decide whether Medicaid expansion and other funding programs outweigh the many provisions he finds undesirable. Republican lawmakers hold narrow veto-proof majorities, meaning any veto would likely be overridden.
But critics like Brooks Fuller, director of the nonpartisan North Carolina Open Government Coalition, say Republicans have inserted into the budget "a broad and sweeping legislative privilege" that would allow elected officials to sidestep the law at the expense of their constituents.
"We're only going to be able to get a selected and curated narrative of the legislative process at the whims of legislative leadership," he said.
While North Carolina legislators are already considered the custodians of their own records, the current law only allows them to withhold those records if they claim a specific exemption, said Mike Tadych, a First Amendment lawyer in Raleigh.
Certain caucus meetings and affiliated records are not open to the public, and a legislator's communications with staff during the bill drafting process can stay private, he explained. The new policy would eliminate the need for lawmakers to claim one of those exemptions to decline a records request.
Public records are defined by law as all documents made or received by the state government concerning the "transaction of public business." State law considers those records "the property of the people" and says they may obtain them for free or at minimal cost.
Journalists and the public rely on North Carolina's public records law — which Tadych said is "one of the strongest in the country in practice" — to learn behind-the-scenes details about the legislative process.
"I can't think of a more crippling blow to the press's ability to gather information about the General Assembly than what the General Assembly appears to be doing to exempt themselves from access laws," Fuller said. "It's a terribly slippery slope and a dangerous step toward total secrecy in government."
Journalists and civic groups could be stonewalled from doing their jobs and would lose access to an essential accountability tool, said Phil Lucey, executive director of the North Carolina Press Association.
Several Senate Democrats raised concern Thursday during floor debate that the policy would invite shady behavior and undermine public trust. Sen. Brent Jackson, a Sampson County Republican, responded that the changes are less drastic than Democrats have made them out to be.
"This final version is just codifying what is common practice, and then the legislators or the lawmakers, they're not hiding anything more than they have in the past," Jackson said.
Another budget provision would repeal a state law that gives the public access to legislative records and communications related to redistricting as soon as the new maps are adopted.
North Carolina legislators have scheduled public hearings next week as they plan to convene in October to redraw boundaries for the state's congressional and legislative seats that would be used for the 2024 elections.
