Nothing to See Here
Last year, NC lawmakers gave themselves the ability to sell, destroy, and disclose their legislative records as they see fit. Despite bipartisan pushback, few are choosing to be transparent.
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I’m out with an in-depth piece today in partnership with The Assembly diving into the origins of recent changes made to North Carolina’s public records laws, the impact those changes have had and whether there will be any actions to come.
Here are some key takeaways from the report that you should know:
Legislative Services Officer Paul Coble is at the center of the debate, as he crafted the changes to public records laws.
Most lawmakers were completely unresponsive to any of four records requests, including three from me and one from The News & Observer. The requests ranged from up to 10 years of communications to a mere single email of lawmakers’ choosing. Of the 170 members of the General Assembly at the time the budget was enacted, 103 didn’t respond to any of four records requests, according to an analysis I performed. Of the 67 who responded, nine didn’t provide any communications. The 58 who did turn over documents included 42 Democrats (27 House and 15 Senate) and 16 Republicans (15 Senate and one House).
No lawsuits have been filed. Why? Lawmakers, news associations and advocacy groups each said they were waiting to see how others would act before they stepped in. Lawmakers wanted to see whether news organizations would sue. News outlets wanted to see if lawmakers would push through a bill making technical corrections to last year’s budget. And advocacy groups had other priorities on their plate.
Democrats are calling for a constitutional amendment to enshrine a public right to access government records and meetings. A similar effort was supported by 33 Republicans in 2011, including then-state Rep. Tim Moore and five other lawmakers still in office— Reps. Kelly Hastings and Frank Iler and Sens. Ralph Hise, Brent Jackson and Buck Newton. Moore was a primary sponsor of the effort, which died in the House Rules Committee. Senate leader Phil Berger never brought it for a vote because the House companion bill had failed.
Now for a more in-depth explanation on the origins of the public records law changes, the pushback and what the future has in store…
Origins
Buried in a 611-page budget draft last year, GOP leaders added a confusing 10-line provision giving lawmakers more authority over their records.
The architect of that language: Legislative Services Officer Paul Coble, who oversees the day-to-day operations of the Capitol and works for House Speaker Tim Moore and Senate leader Phil Berger.
How we know: Rep. Jason Saine told me the provisions came from the “corner offices,” meaning Berger and Moore. Moore told me the public records changes came from Berger, Coble and legal staff. Berger’s office said Coble crafted the language.
After transparency advocates expressed concern with the language, additional provisions were inserted into a final 625-page budget to give current and former lawmakers the unilateral ability to decide which of their communications to sell, destroy, withhold or disclose. Communications about redistricting are also no longer a public record.
Coble didn’t respond to a request for comment on his involvement.
Justification
Berger has defended the public records changes as a necessary solution to a dispute between Coble’s office and archives staff at the Department of Natural and Cultural Resources—an explanation the department rejects.
“Archives staff met with the Legislative Services Office in 2021 and last answered their questions on records retention nearly a year and a half before the legislative changes last fall,” said spokesman Schorr Johnson. “The Division of Archives and Records and the department are not aware of any dispute.”
Berger spokeswoman Lauren Horsch pushed back.
“One of the primary responsibilities of the DNCR is to preserve public records, and the Legislative Services Office wanted to ensure that the records sent to the DNCR were public records,” Horsch wrote in a statement. “Over recent years, the Legislative Services Office and the DNCR have rarely been able to agree on a schedule because of uncertainty surrounding which records were public records and importantly, who was the proper custodian of the records.
“It has been the longstanding policy of the General Assembly that legislators are the custodians of their records. Therefore, the DNCR would need to have 170 agreements with the General Assembly to cover each member, plus separate agreements with the chamber clerks, the Legislative Services Office, and potentially other divisions of the General Assembly. To our knowledge, there has not been a time when the DNCR had agreements with every member of the General Assembly.”
Resistance
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Berger maintains that last year’s state budget merely codifies what had already been a standard practice for how lawmakers responded to records requests.
“We can have a conversation about whether or not the practice ought to be different,” Berger told reporters this month. “I have not seen a difference in how we respond to records requests because we view what was in the budget bill as a codification of the actual practice.”
A wide range of people and groups disagree with Berger’s interpretation of the change, including Democratic lawmakers, Republican and Democratic Council of State members, news associations, political operatives, left-leaning advocacy groups, nonpartisan think tanks, and both conservative and liberal editorial boards.
Sloan Rachmuth, a conservative pundit who managed Michele Morrow’s successful primary campaign against Republican state superintendent Catherine Truitt, said she is mortified to find herself in the position of agreeing with Democrats.
“They make these other members co-sign onto tyrannical things,” Rachmuth said of Berger and Moore. “They put the integrity of our government at stake and the reputation of Republicans at stake. And right before an election, it’s a terrible look.”
Common Cause North Carolina, a left-leaning advocacy group that has successfully sued Republicans in redistricting cases, agrees. “It just really begs the question: what are you trying to hide?” said Ann Webb, the group’s policy director.
Phil Lucey, executive director of the North Carolina Press Association, said a few outlets were considering suing over the records changes, but he hasn’t heard of any of them actually moving forward. He said immediate solutions are unlikely.
“We will continue to fight for a repeal or to get this fixed,” Lucey wrote in an email.
While many organizations forcefully pushed back on the General Assembly’s efforts to undermine the public’s access to information, the fervor hasn’t endured. Almost nine months later, no lawsuits have been filed.
It wasn’t until this month when we saw the first concrete action to invalidate the public records law changes. Sen. Graig Meyer, an Orange County Democrat, and other Democrats unveiled a proposed constitutional amendment to create a public right to access government records and meetings.
Sen. Graig Meyer, an Orange County Democrat, has been the top critic of the public records law changes GOP leadership put forward. He turned over 142,675 emails dating back to 2014—the most of any lawmaker. He said he wishes Republicans would revisit the issue, and is frustrated with colleagues on both sides of the aisle for not responding to records requests.
“As a legislator, it makes me sad because I’m so disappointed in my colleagues for not having principle on this,” Meyer said. “As a citizen, it makes me angry that people are elected to office who won’t allow the public to access the records of the business that we elected them to do.”
Abysmal response rate
When I asked all 170 lawmakers to provide me with at least one email of their choice, House Republicans proved least transparent, with just one of 72 members (Rep. Frank Sossamon) providing a document. To Moore, that response rate isn’t a bug in the system; it’s a feature.
“Why did that one respond?” Moore asked reporters this month.
Two other GOP House members responded to records requests, but deferred to Moore’s office to handle the request, which never provided any communications.
Asked if legislators could be trusted to be the custodians of their own records, Moore replied, “Lawmakers can and should be. Lawmakers are elected by the voters and are given a responsibility to do a lot of things, to pass a budget, to pass laws for the good of the state. What we’ve seen in terms of the open records, the modifications, I think, are working just fine.”
Looking ahead
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The debate over public records is unlikely to be addressed until 2025 at the earliest, and serious discussions about changing the law are likely contingent on a shift in the makeup of the legislature or the political will among statewide officials for increased transparency.
Top candidates for statewide office say they want the legislature to reconsider its actions. Hal Weatherman, the GOP lieutenant governor candidate who would administratively preside over the Senate if elected, wants the General Assembly to be more transparent in assembling the budget.
“I’m all in favor of transparency,” Weatherman said. “I believe that daylight shined on things is a good thing and in the public’s best interest.”
Democratic state Sen. Rachel Hunt, who is running for lieutenant governor, was among the handful of lawmakers who provided at least some of her legislative communications. She said she voted against the budget in part because of the public records provisions.
“I believe in a transparent government where citizens can hold their elected officials accountable,” Hunt said in a statement.
Republican Lt. Gov. and gubernatorial candidate Mark Robinson told me in October that he’d follow up on a question about the public records law changes. He never did.
Instead, Robinson’s campaign spokesman Mike Lonergan said in an emailed statement, “While we can’t speak to the intent of the legislature, as lieutenant governor, Mark Robinson has made transparency a top priority and will continue to do so as governor.”
In 2021, Robinson came under scrutiny for assembling a task force to investigate claims of indoctrination in K-12 public schools, which produced a report. The names of those who submitted complaints were later redacted. The task force also appeared to violate the state’s open meetings law by not providing any advance notice to the public for when the group met, nor any meeting minutes, list of attendees or audio or video.
Democratic Attorney General and gubernatorial candidate Josh Stein thinks voters ought to have greater access to legislative communications. “Elected officials should be working to make our government more transparent and accountable, not less,” Stein said.
Stein has generally pushed for greater governmental transparency, particularly through a database tracking opioid settlement funds.
U.S. Rep. Dan Bishop, the GOP nominee for attorney general, didn’t respond to a request for comment.
U.S. Rep. Jeff Jackson, a former state lawmaker who is now running against Bishop, said, “Lawmakers shouldn’t be exempting themselves from public records requests. The public’s trust in elected officials is already at rock bottom. You have to show them a higher level of transparency, not put more walls up.”