Hannah Schoenbaum/AP Photo
Republican North Carolina House Speaker Tim Moore speaks to reporters about a public records provision in the state budget, September 21, 2023, on the House floor in Raleigh, North Carolina.
After weeks of back-and-forth politicking, the North Carolina state legislature, which is dominated by the GOP in both houses, passed a contentious state budget. The bill itself took weeks to be finalized as Republicans internally fought over whether to legalize casinos in the state. Ultimately, that provision was dropped, and the rest was mostly written by Republicans behind closed doors. Gov. Roy Cooper (D) neither signed nor vetoed the bill, which allowed the law to go into effect today.
The $30 billion budget includes funds for Medicaid expansion for 600,000 North Carolinians, which was decided on back in March. It also includes a modest raise for teachers (in one of the worst states for the profession) and funding to build new schools in rural communities. But these were the carrots to persuade Cooper not to veto the legislation.
Other elements have drawn ire from both sides of the aisle, as well as public scorn. Key criticisms include the expansion of private-school vouchers, tax cuts, and a ban on COVID-19 vaccination requirements. Among the many riders unrelated to spending in the bill is one raising the North Carolina Supreme Court’s retirement age, which would maintain the GOP’s 5-2 hold on the court by allowing current Supreme Court Chief Justice Paul Newby to serve his full term to 2028.
Perhaps most concerningly, the budget would drastically change the state’s public records laws. It does this by giving legislators full control over their documents and records, which previously would have automatically been subject to public requests. Under the new law, the text of which was obtained by The News & Observer and published here, legislators would have the discretion to decide whether a document is a public record or whether to turn it “over to the Department of Natural and Cultural Resources, or retain, destroy, sell, loan, or otherwise dispose of, such records.”
“It means that we are only going to be able to see documents from elected representatives when they choose to share them,” Brooks Fuller, executive director of the North Carolina branch of the Open Government Coalition, told the Prospect. It’s going to produce a “really curated and potentially inaccurate picture of government,” Fuller said, one “that’s totally at the whims of what legislators want to share with us.”
Previously, North Carolina had a public records law that mirrored the federal Freedom of Information Act. All 50 states have a similar statute, which for over half a century has protected the public’s right to know what government agencies and representatives are doing in their name, and kept a lot of information above the surface. The change to North Carolina’s law, and its unclear scope, means that everything from active litigation to redistricting could be in play, Fuller explained.
“The law has always said in North Carolina that public records are the property of the people.”
The provision that could lock up a good deal of public information is only made worse by the fact that the entire budget was debated behind closed doors. This has been a feature of the legislature since Republicans took over in 2011. The party is already pushing forward to cement that control through plans for 2024 redistricting, which they now have the (nearly) unchecked power to do after a state Supreme Court ruling earlier this year.
The change to public records laws, which is buried among more than 600 pages of text, is a major affront to the state’s democracy and any attempts to be transparent, according to advocates.
“The law has always said in North Carolina that public records are the property of the people,” Fuller said. “It has never said that it’s the property of individual elected lawmakers.”
This provision has been challenged by Democrats, none of whom voted for the budget, and transparency advocates, more than 20 of whom signed on to urge the state’s legislative leaders, Senate president pro tem Phil Berger (R) and House Speaker Tim Moore (R), to reject the bill before it was passed. Moore instead defended the last-minute addition as streamlining the public records process, enabling legislatures to filter out “unreasonably broad or cumbersome” requests, as the Associated Press reported.
For Gov. Cooper, his lack of a veto on the bill comes from his affinity for the Medicaid expansion. This has been a state Democratic priority and personal project of the governor for years. He has, however, also expressed concern over whether parts of the bill may be unconstitutional or “misguided.”
Some have speculated on the strategic and potentially questionable ways public records documents can be sold. However, as Fuller explained it, this language is likely an attempt to mirror the original law that expressly prohibited it, which then makes it crystal clear that lawmakers are able to “do what they want” with the documents. And more still are concerned with the potential destruction of documents.
The budget contains plenty to take issue with, and it is sure to be challenged in various arenas. But public records requests are notoriously hard to see fulfilled even under laws requiring more transparency, and this change only raises the barrier to entry. The average North Carolinian will be further cut off from the legislative process that governs their lives.
