Saturday, July 13, 2024

If state budget passes, it could prevent access to lawmakers’ public records

A provision of the North Carolina budget proposal could affect how the public can access legislators’ records. (Pexels)

Tucked into the state’s $30 million draft budget proposal — which passed the House Thursday — is a provision that could allow legislators to keep their records private. 

The budget reads “the custodian of any General Assembly record shall determine, in the custodian’s discretion, whether a record is a public record.”

Another section states lawmakers, even those who have left office, “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.”

If passed — Senate is expected to give a final vote Friday — the exemption would apply to all records created while the legislator was in office. Lawmakers are designated custodians of their records under current law, but they are only allowed to withhold records under certain exemptions, such as confidentiality. 

It is unclear how the law would be understood; a narrow interpretation appears to just apply to archival records. Right now, legislators must submit all their records to the archive, managed by the Department of Natural and Cultural Resources. 

A stricter reading could give lawmakers more authority over what is submitted to the department. But interpreted broadly, it could allow lawmaker discretion to deny public record requests from anyone.

According to Senate Leader Phil Berger, the provision is intended to address a dispute between the Department of Natural and Cultural Resources and the legislative services officer, who handles some archival duties. The issue is “whether or not the executive branch should have the ability to tell the legislature that certain things have to be saved in order to be archived,” Berger said to the News & Observer Wednesday.

Port City reached out to each tri-county representative on this provision of the budget; two responded.

Rep. Frank Iler (R-Brunswick) said he was not sure why the provision was included in the budget, but he is “aware some of the FOIA requests border on harassment.”

Rep. Deb Butler (D-New Hanover) said she consulted with staff attorneys on the provision and said the language in the budget does not come with clear answers about how it will change current law. 

“It feels like an attempt to shield what should be public information,” Butler said. “I can say that, even though sunlight is the best disinfectant, it’s regularly pretty cloudy here on Jones Street.”

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