Public Documents? Guess Again

New amendment threatens to undermine NC’s principles of open government, accountability, and transparency.

Nelda Holder, photo by Tim Barnwell
Nelda Holder
Photo: Tim Barnwell
Legislative News by Nelda Holder –

An interesting thing has happened in North Carolina politics.

Well, first I should report that the 2023 Appropriations Act (HB 259) was finally passed, giving us a $30 billion state budget three months late, and one that legislators in general (not to mention the public) had little chance to review once the draft was made public.

The good news? As was widely publicized, the new budget untied the purse strings necessary to fund additional Medicare assistance in the state for approximately 600,000 people—after years of unsuccessful attempts to receive the legislative necessary go-ahead for that health care.

For this reason, despite other misgivings, Gov. Roy Cooper allowed the budget bill to become law 10 days after passage—something that happens automatically if he provides no signature or veto. But Cooper didn’t mince words about his opinion: “Make no mistake, overall this is a bad budget that seriously shortchanges our schools, prioritizes power grabs, keeps shady backroom deals secret and blatantly violates the constitution, and many of its provisions will face legal challenge.”

The budget includes some $250 million for the controversial Opportunity Scholarship Grant Reserve which this column has been tracking—providing state-funded scholarship grants for children to attend non-public schools.

And there is a brand-new provision in the budget that we never even had a chance to write about because it presented itself at the very last moment.

Now you see it, now you don’t

It came in the form of an amendment that was tossed in under Article 17, Chapter 120, Section 27.7 (page 529). “Tossed,” I might emphasize, with the effect of a powerful explosive. I suggest that you read it in its entirety, but here’s a cheat sheet—or three cheat paragraphs:

Each legislator “while in office and after leaving office” has now been given custodianship of all “documents, supporting documents, drafting requests, and information requests made or received by that legislator while a legislator.

While in office, legislators “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.”

Those two paragraphs lead up to this amendment contained in Section 27.9(a), which has rapidly generated a great deal of public rage. In effect, the amendment exempts the General Assembly from the public records law that applies to other branches of government. Here it is in its explosive entirety:

(d1) General Assembly. —Notwithstanding any other provision of this section or order, rules, or regulations promulgated or adopted thereunder, the custodian of any General Assembly record shall determine, in the custodian’s discretion, whether a record is a public record (Author’s note: emphasis added) and whether to turn over to the Department of Natural and Cultural Resources, or retain, destroy, sell, loan, or otherwise dispose of, such records. When requested by the legislative Services Officer, the Department of Natural and Cultural Resources shall assist in the preparation of an inventory of the records to which the request applies.

Closing the door to public access—and opening it to the random ability to destroy heretofore preserved and available public documents—has caused an immediate uproar, with the effect of bringing together an unusual coalition advocating for appeal. Two protests in particular have a very loud ring. One is a coalition letter decrying the legislative action, which emphasizes a “significant threat to the principles of open government, accountability, and transparency vital to a functioning democracy.”

That coalition includes the Carolina Journal, John Locke Foundation, North Carolina Press Association, and Carteret County News-Times. In their letter, they stress the necessity of public scrutiny for an “informed citizenry,” and stress that public records access allows citizens to “hold their representatives accountable and make informed decisions about their governance.”

The coalition letter further stresses: “This change effectively creates a situation in which state lawmakers, who are also considered custodians of their records, could exempt themselves from public records law, denying citizens their right to scrutinize their government’s actions.” It ends by stressing there are valid exemptions to protect sensitive information, but “this amendment goes beyond safeguarding legitimate concerns and threatens to undermine the principles of transparency that North Carolina’s public records laws were designed to uphold.”

You can tell by my extensive quotes that as a journalist, and as a columnist writing about North Carolina government for The Urban News, I support the journalism coalition’s position. “Government in the sunshine” is an important mantra—and a necessary principle. And the Republican leadership of this Republican-dominated General Assembly has just pulled a very dark curtain down over their entire “public” operation. So it’s time for citizens—Republican, Democrat, or Independent—to remind them of who they were meant to serve. Certainly not themselves alone.

But, as we began by reporting, the three-months-late budget has now passed.

They’re still here . . .

Following the budget passage, the legislators are still on the job with no sure adjournment in sight. The last General Assembly broke the mold with 199 legislative days on record for the long session, making it the first Regular Session adjourned in a separate year from its start. The odds are being set on the 2023 long session right now.

At the top of the heap for action now is redistricting. Limited (by choice of the legislature) public hearings are taking place currently around the state, all in the middle of the business day.

As a refresher, new congressional and legislative maps were drawn in the fall of 2021 based on 2020 population data. But the NC Supreme Court (which at that time held a Democratic majority) struck down the maps because of partisan gerrymandering, and another set of maps were drawn for use in 2022. Then came a Republican majority on the court, and a redraw of the 2022 maps based on court reversal of previous rulings. The redrawn maps were to be operative in the 2024 elections, so that’s what is in process right now.

As in, literally right now. While I type. Or at least within a couple of hours of my morning coffee. The legislators have already concluded their generous provision for this 100-county state in the form of THREE (count ’em) public hearings—in Elizabeth City, Hickory, and Raleigh—all held during normal working hours for the public. There was no virtual hearing scheduled.

The odds do not seem to be in the public’s favor.

Rob Schofield of NC Newsline suggested back in July, no less, that it was time for adjournment. This state, he noted, is one of only eleven that lack a formal cap for their sessions. Noting that the the old-school operation of these “part-time” legislators used to see adjournment around mid-year and a scurrying home until the next session in January. But Schofield notes that particularly since the Republican sweeps began in 2011, the “long” sessions have expanded into fall and winter, or have been added and abetted on the calendar by called “special sessions.”

I’ve spoken personally with some 30-, 40-, 50-year-olds whose general savvy about the world and this state indicate an ability to offer a fresh perspective to this state’s legislative halls. I sense that we’re in dire need of fresh perspectives.

What do those people say to me? That the part-time legislature doesn’t work for young folks who must earn their own living through salaried jobs. They can’t take six months off. Or work two days and legislate three. Or work two weeks and legislate four. And the salary paid to legislators (around $13,000 annually, plus expenses) will not support a single individual or family.

We’re losing vital voices in understanding what this state’s governance needs. Think about that as we gear up for the 2023 elections.


Nelda Holder is the author of The Thirteenth Juror – Ferguson: A Personal Look at the Grand Jury Transcripts.

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