'A travesty for representative democracy': NCGA budget provisions affect public records law

The North Carolina General Assembly passed the long-awaited 2023-25 state budget at the end of September. It included two provisions that may affect the balance between government transparency and secrecy. 

Legislators wrote one provision that exempts them, for life, from the public records law that governs all other branches of state government and gives them the power to destroy, sell or otherwise dispose of those records. 

North Carolina general statute defines public records as all materials made or received in connection with the transaction of public business by any agency within the North Carolina government or its subdivisions. 

Phil Lucey, executive director of the North Carolina Press Association, said everyone should care about this change because officials are elected to work on behalf of their constituents.

“Now, lawmakers will have sole discretion as to whether or not the citizens of the state can see any of the work that's been done on their behalf,” he said. 

This provision is just one of multiple items added to the budget at the last minute. Members of the General Assembly could not amend or remove provisions because they didn’t appear on any of the first five versions of the budget, only the final version that had to be voted on the next day. 

This alone was enough to raise concerns for some legislators. N.C. Sen. Graig Meyer (D-Caswell, Orange, Person) said he is drawing attention to this unusual method of legislating because he is concerned the Republican party is "moving toward authoritarianism."

“There’s no reason to do it this way unless you think that you can’t do it through a straightforward means,” he said. “But I don't believe any of these provisions would be able to get through a full legislative process.”  

The change to public record law comes just as North Carolina’s redistricting period begins, as legislators redraw congressional maps for 2024. 

Brooks Fuller, the director of the North Carolina Open Government Coalition, said the public will no longer be able to see what goes into redrawing maps or find out why they are in a new district. 

“It’s a travesty for representative democracy to not understand how that's done,” he said. 

Another change in the budget is an expansion of power for the Joint Legislative Commission on Governmental Operations, also known as GovOps.

According to the website, the commission oversees and reviews government spending to ensure the effective and efficient use of state funds. 

In March, GovOps used its then lesser investigative abilities to request any documents containing information about the diversity, equity, inclusion and accessibility training for employees administered by all 17 institutions in the UNC system. 

Republicans make up over 75 percent of the commission, and the two chairs are House Speaker Tim Moore (R-Cleveland, Rutherford) and Senate President Pro Tem Phil Berger (R-Guilford, Rockingham). 

The commission’s predecessor, the non-partisan Program Evaluation Division operated by staff, was shut down in 2021 despite former director John Turcotte’s claim that it saved the state $38.6 million annually. 

The budget gives the commission the power to investigate any, “State agency, public authority, unit of local government, or non-State entity receiving public funds,” including private businesses that conduct business or subcontract with the state. The commission is also authorized to enter without a warrant into any building or facility leased or owned by the above groups. 

Any individuals or groups being investigated are under a strict confidentiality order and are prohibited from revealing anything about the investigation or even the fact that an investigation is occurring. 

Anyone who refuses to comply with requests from the commission or breaches the confidentiality requirement could face a Class 2 misdemeanor, which is punishable by up to 60 days in prison and a maximum fine of $1,000. 

Some Democrats are warning that this expansion of power could lead to serious overreach and intrusion by the Republican-controlled commission. 

Meyer is specifically concerned about the impact on election administration, interference with law enforcement and even collection of ultrasound records that must be submitted by anyone in the state who wishes to have an abortion.