- The General Assembly should repeal or modify a provision in the 2023 budget that exempted legislators from the state public records law.
- State law should be modified to make clear that local government sub-majority meetings in which public business is discussed must be open to the public.
- North Carolina needs a transparency amendment added to the state constitution.
North Carolina has regressed on government transparency. The General Assembly has made itself functionally immune to the state’s public records law, and some local governments are skirting the open meetings law by having sub-majority “check-in” meetings.
Here are three ways legislators can make state and local government more transparent and accountable.
Make legislative records public
The General Assembly put a provision in the 2023 budget that made legislators, who are the custodians of their own records, the sole determiners of whether those records should be made public. It states:
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 and whether to turn over to the Department of Natural and Cultural Resources, or retain, destroy, sell, loan, or otherwise dispose of, such records.
The ostensible reason for the provision was to settle a conflict between legislators and the North Carolina Department of Natural and Cultural Resources (which archives public records) over control of legislative documents.
Even so, this provision is like using a shotgun to control flies.
The General Assembly could have passed a provision giving legislators control of which documents must be sent to the state archives. Instead, the approved provision gives legislators the authority to determine if anydocuments in their possession are public records for any purpose.
Legislators added the provision shortly before redrawing congressional and General Assembly districts ahead of candidate filing for the 2024 election, meaning records related to the redistricting process could be kept from the public at legislators’ discretion.
The 2024 John Locke Foundation report “Reforming North Carolina’s General Assembly” showed that a good first step toward increasing government transparency would be to “repeal or modify the provision in the 2023 budget that made legislators the sole arbiters of which documents they produce are public records.”
Make local government “check-in” meetings public
North Carolina’s open meeting law requires that the official meetings of all public bodies, including county commissions and city councils, “shall be open to the public.”
But what makes a meeting official? General Statutes § 143‑318.10(d) tells us:
“Official meeting” means a meeting, assembly, or gathering together at any time or place or the simultaneous communication by conference telephone or other electronic means of a majority of the members of a public body for the purpose of conducting hearings, participating in deliberations, or voting upon or otherwise transacting the public business within the jurisdiction, real or apparent, of the public body. However, a social meeting or other informal assembly or gathering together of the members of a public body does not constitute an official meeting unless called or held to evade the spirit and purposes of this Article.
Some local governments have gotten around that requirement by dividing their meetings into two or more “check-in” meetings, with half or fewer of their members attending each. Those are not just social gatherings (which are exempted from the open meeting law). They involve discussing issues of public concern that often lead to votes at later, official meetings. The effect is that citizens do not know the real rationale behind government decisions and have fewer opportunities to learn what their governments are planning before final decisions are made.
The simplest fix for this problem is for local governments (and, if necessary, the courts) to recognize that such nonmajority meetings are informal assemblies “held to evade the spirit and purposes” of the open meeting law and are therefore subject to it.
The General Assembly could help by explicitly including nonmajority meetings with social gatherings as subject to the law if they are held in the spirit of violating it.
Pass a transparency constitutional amendment
As legislators address current transparency issues, they should also consider how to protect and expand open governance. One way to buttress transparency in North Carolina is to add a transparency amendment to the state constitution.
A report for the University of Florida’s Brechner Center for Freedom of Information found that having a transparency requirement in a state constitution “rarely seems to produce an outcome clearly different from what a litigant could expect relying on state statutory rights alone.” The authors cautioned that the lack of difference in the study may be due to a combination of having few data points with “so many other variables are at work,” however.
One thing a transparency amendment would accomplish is to make the kind of regression the General Assembly engaged in in 2023 more difficult.
So, what would a constitutional amendment look like?
Aside from articulating the right to public access to government records and meetings, the Brechner Center found that an amendment should have two elements:
- Require a supermajority for the legislature to exempt itself from transparency laws while requiring a simple majority to remove exemptions
- Include a “clearly outweighing” standard that favors public disclosure unless the interest served by nondisclosure outweighs that of disclosing a record.
Montana’s constitution (Article II, Section 9) provides an example of such a “clearly outweighing” standard.
Both of those elements have been proposed for North Carolina in the past. Republicans proposed a supermajority requirement in 2011, and Democrats proposed a “clearly outweighing” standard (written as “a compelling public interest”) in 2024. Those proposals should be combined along the lines of “subject to general law passed by a three-fifths vote in each house of the General Assembly providing for exemptions in cases of compelling public interest.”
The General Assembly should address the legislative regression and local government circumventions that undermine transparency. They should also add a transparency amendment to the state constitution to reduce the likelihood of such violations in the future.
