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Legislature sets dark example for Sunshine Week

Colin Campbell

Colin Campbell is editor of the Insider State Government News Service.


Tuesday, March 20, 2018

Last week was Sunshine Week, the annual event where news organizations promote government transparency and analyze how well our public records and open meetings laws are working.

This year, 10 North Carolina news outlets teamed up to examine whether government agencies are following state law on closed-door meetings. The law requires city councils, school boards and other government bodies to hold meetings in public where they can be held accountable, but there are some exceptions — such as discussions about a particular employee and meetings with attorneys.

When that happens, the board is still required to keep a record of what happens in private — and those minutes must be released unless doing so would "frustrate the purpose" of the closed session.

The coalition of news outlets hit roadblocks when it requested a year's worth of minutes from closed meetings of nearly 50 public bodies on the local, state and county level. Some heavily redacted the records, making it difficult to tell what happened, and some didn't respond at all.

That's a troubling finding, but I think I know where those government boards learned to be so dismissive toward transparency requirements: Our state legislature. Sure, the legislature created the public records law, but that doesn't mean the honorables in Raleigh have to follow it themselves.

The public is always invited to attend House and Senate sessions and committee meetings, but that's often not where the real action happens. The party in power typically sets its agenda during private caucus meetings. And when the House can't agree with the Senate on legislation — most notably the state budget — key lawmakers meet in secret to hash out the differences and often add a few surprise provisions that haven't been vetted.

Other government bodies must cite a legitimate reason to meet in private. That doesn't apply to the legislature, where the rationale for secrecy boils down to efficiency and longstanding practice.

Both political parties have always done it this way, and wheeling and dealing is a lot easier if those pesky reporters and citizens aren't watching. Sometimes politicians want budget money for a pet project in exchange for their vote, but they'd rather not say so publicly.

"When you negotiate, you got to be able to spit and curse and give and take," then-Rep. Leo Daughtry, R-Johnston, said in 2015. "You can't negotiate in public."

But once the dust settles and the bill becomes law, surely they could release the meeting minutes? Nope — there generally aren't any records to release. There's no requirement that a clerk sit in and take notes on what happened in caucus or in the House-Senate negotiations.

That means information that's readily available about a city council decision can be impossible to find at the legislature. Want to know which legislator proposed a controversial provision tucked into a bill at the last minute? You'd better hire a detective, because there's no document with the answer.

You might try to request a legislator's emails to see which industry lobbyist requested the mysterious legislation. Sometimes legislators will provide those records, but oftentimes your request will be politely declined.

In 2016, an attorney for Senate leader Phil Berger told The Associated Press that many of Berger's emails don't have to be released because of an exemption for records that weren't "made or received pursuant to law or ordinance." There's also an exemption in state law that keeps private any "document prepared by a legislative employee upon the request of any legislator."

Legislators could easily fix this by applying to themselves the same transparency laws they have for other government bodies. They'll probably never do it — no one wants to give up special privileges — but it's our responsibility as journalists and constituents to keep pushing and keep asking for the records. Happy (belated) Sunshine Week!

Colin Campbell is editor of the Insider State Government News Service. Follow him at NCInsider.com or @RaleighReporter. Write to him at ccampbell@ncinsider.com.


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