Proposal would make NC public records and meetings access a constitutional right

A group of legislators are pushing to guarantee the right to access to public records and meetings in the state Constitution, but that proposed amendment likely isn’t headed anywhere during this year’s legislative session.

State Sen. Graig Meyer, D-Orange, and state Rep. Pricey Harrison, D-Guilford, spearheaded the effort to introduce the constitutional amendment, which would stipulate that, “The records made, transmitted, or received by public officials and agencies, including the executive, legislative, and judicial branches of State government, and all bodies of local government, shall be open to public inspection, examination, and duplication.”

In North Carolina, amendments to the Constitution need 60% support in both legislative chambers before being put on the general election ballot for voter approval.

The single-page bill, filed concurrently as S.B. 911 and H.B. 1075, passed its first readings before being referred to the Rules committees of the House and Senate, where it’s unlikely to be picked back up this session. However, the sponsors are hopeful that this is the first step in building the momentum required to eventually pass their bill.

Meyer and Harrison told Carolina Public Press that they were certain the measure would pass if put on the ballot — the hard part is getting it there without strong bipartisan support. Republicans vastly outnumber Democrats in the legislature and hold a veto-proof supermajority that grants them outsized influence over the lawmaking process.

Although not historically a partisan issue, no Republicans agreed to co-sponsor the legislation or signaled that they would support it. That’s because current GOP leadership is staunchly opposed to expanding access to legislators’ records, Meyer said.

Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, faced backlash for a provision in last year’s budget bill that allowed legislators to determine what among their records is public and granted them the power to “retain, destroy, sell, loan, or otherwise dispose of, such records.”

That provision earned the General Assembly the Black Hole Award from the Society of Professional Journalists, who give the designation each year to a government institution “for acts of outright contempt of the public’s right to know.”

Meyer told CPP that S.B. 911 was “absolutely a response” to that rollback of access to legislative records. He said he believes the provision was created in part to bury evidence of deals that would provide kickbacks to certain legislators if the since-failed casino bill had become law.

“The failure of the casino bill, the introduction of the budget and the inclusion of that provision to remove legislative records from the public records law, it was all too shady to me,” Meyer said.

Why is access to legislative records limited?

Even before the provision in the budget bill, legislators exercised significant control over their records.

Members of the General Assembly are considered the custodians of their own records, and their offices are in charge of fulfilling records requests. Few, if any, measures are in place to ensure that records requests filed in the Legislature are properly fulfilled.

“I wouldn’t say there were exemptions (for legislators) but rather a lack of clarity as to what you could get and from whom,” media lawyer Mike Tadych told CPP in an email.

“... It’s my understanding that many legislators do not respond (to records requests) at all while a few provide everything.”

Rep. Lindsey Prather, D-Buncombe, a co-sponsor of H.B. 1075, called the process of filling out records requests “onerous” and said she thinks many legislators ignore requests not out of negative intent but rather a feeling that the work required to fulfill the requests isn’t worth it.

She added that the Legislature could modernize the process to fulfill records requests alongside ratifying the amendment to guarantee access to those records.

“I would encourage my colleagues to think about the good that we could do with this, the trust that we could restore with this when it comes to our relationships with the public and the press and how much better that would be for the functioning of our government,” Prather said.

Path to bipartisan support for amendment?

Historically speaking, government transparency is not a partisan issue.

“It's not that one party has always been in favor of public records and the other party has always been opposed,” Meyer said while speaking on the proposed amendment during a press conference last week. “It's really a battle between the public and the public officials, no matter which public officials are in charge.”

S.B. 911 and H.B. 1075 have received praise from organizations of varying political molds.

Mitch Kokai, a senior political analyst at the right-leaning John Locke Foundation, told CPP in an email that “The concepts spelled out in this proposed constitutional amendment are sound. Government should establish openness and transparency as its default settings.”

A group of Republican senators led the last attempt to enshrine the right to public records access in the state constitution with a 2011 bill dubbed the “Sunshine Amendment.” Three of the senators who co-sponsored that bill – Sen. Brent Jackson, R-Sampson, Sen. Buck Newton, R-Wilson, and Sen. Ralph Hise, R-Mitchell – still serve in the Legislature.

Meyer said he asked all three of those senators, as well as Sen. Berger, to co-sponsor S.B. 911, but they declined.

The offices of Jackson, Newton and Hise did not respond to CPP’s request for confirmation that they declined to sponsor the bill.

More recently, Meyer co-sponsored a bill called the Government Transparency Act of 2023 alongside Sen. Bill Rabon, R-Brunswick, and Sen. Norman Sanderson, R-Pamlico. That bill, which would have increased access to records regarding the performance and dismissal of public employees, died in the Rules Committee last year.

The offices of Rabon and Sanderson did not respond to emails and phone calls from CPP asking about whether they would support S.B. 911 or future bills related to increasing access to legislative records.

The bill sponsors said that while they don’t expect any movement on their bills this session, they remain hopeful that they can get broader support for the proposed amendment in the future.

“I know there’s individual Republicans who care about access to public records,” Rep. Harrison told CPP.

Right now, it seems like the biggest obstacle to getting those Republicans on board is their leadership. However, Speaker Moore is not running for re-election, while Berger will be running for a 13th term in the Senate in a solidly red district come November.

“I hope that eventually we'll have leadership that will support greater transparency,” Meyer said.

“I felt that it was important for us to go ahead and begin making that argument, even if we didn't have a bipartisan group right now, because the public deserves it right now. The public shouldn't have to wait until the leadership changes to know that there are people who are fighting for them and for their access to records that they should rightfully own.”

This article first appeared on Carolina Public Press and is republished here under a Creative Commons license.