From the Charlotte Observer (3/18/09): E-mails to a city council member, county commissioner, state agency head or the governor are usually public records, available for anyone to view upon request.
But that’s not necessarily the case at the N.C. General Assembly, where the men and women in charge of sculpting the statutes of North Carolina have written themselves a number of exemptions to the state’s public records law.
Letters from constituents, private companies wanting to be state vendors, and requests for information by state senators and representatives can be kept away from the curious gazes of the general public, according to Walker Reagan, the former legislative counsel for the General Assembly who now heads the legislature’s research division.
The decision to make them public rests with the individual legislator, which has some open government groups worried about a lack of transparency.
“They’re doing the people’s business as we all know and it needs to be communicated in open and bright sunshine,” said Bob Phillips, the executive director of N.C. Common Cause, a nonprofit organization critical of special interest groups’ influence on state government. “When it isn’t, it raises doubt and concern.”
The legislature’s ability to label a number of categories of documents confidential contrasts with Gov. Bev Perdue’s pledge that her administration will be more open than her predecessor’s, in which some officials were instructed to destroy e-mail. Administration e-mails and drafts of documents are public records, regularly requested by reporters and others to get an unfiltered look at how government business is conducted.
The legislature, controlled by Democrats, has seen its fair share of scandals in recent years, with four former legislators – Jim Black, Michael Decker, Thomas Wright and Frank Ballance – in federal or state prisons.
In a letter that Reagan, then the legislative counsel for the General Assembly, sent to Senate President Pro Tem Marc Basnight in December, Reagan advised that there’s no requirement to release copies of constituents’ letters about the state’s probation system to a reporter for The (Raleigh) News & Observer.
The reason? Basnight’s job description as a state senator doesn’t include receiving letters from his constituents, according to the legal theory outlined by Reagan.
“Because no law or ordinance either requires the constituent to correspond with you to receive a State benefit or right, nor requires you to receive or act on constituent’s correspondence, these documents would not meet the definition of a public record,” Reagan wrote.
A similar request to House Speaker Joe Hackney was greeted with the same response, though both legislators did agree to release the letters. They made sure, however, to note that it wasn’t because they felt the letters were public records under the law.
Hackney said he tends to lean toward allowing access to documents in his office as well as his e-mails when they’re requested. Hackney keeps archived copies of all his electronic communication, which can range from 30,000 to 40,000 e-mails a year, but he knows some colleagues who erase all their communication at the end of a day or week.
Basnight said he tries to strike a balance between openness and privacy for constituents, who might not want the subject of their correspondence to be public.
“I would say leave them private, so that the constituent may feel free to write and express his views and concerns,” Basnight said. “If they don’t want that public, I don’t want that public.”
Protecting the privacy of constituents
Deborah Ross, a state representative from Raleigh, said she receives letters with intimate details from constituents, often concerned with domestic violence, and she wouldn’t want to see those become public.
It’s up to individual legislators to decide if they want to release their letters, e-mails and other records, Reagan said. His advisory letter to Basnight goes on to say that any personal e-mails or letters and those of a “political or partisan” nature are also hands-off.
“Very few of our e-mails are public records,” Reagan said.
Reagan’s interpretation, open government proponents say, is extremely troubling and a step away from the ethics reforms that passed after the scandal surrounding Black, the former House speaker convicted of public corruption charges.
“The legislature at all levels always carves out exceptions to laws,” said Jane Pinsky, executive director of the N.C. Coalition for Lobbying and Government Reform. “I find it I very concerning at a time when others are promising openness and transparency.”
The same correspondence is generally considered public when coming from state department or city or town governments, unless it falls under a narrowly defined list of exceptions spelled out in state public records law.
But state legislators say they should be free to pass laws without having to explain the process that led to them arriving at their decisions, Reagan said.
Gaining insight into developing legislation
Legislative letters and communication can do more than help explain the logic behind new laws.
Copies of e-mails Black sent and received played an important role in detailing his legislative and campaign activities. Such records, for example, showed that Black’s former unpaid political director, Meredith Norris, had been secretly lobbying for lottery vendor Scientific Games, and that another lobbyist for the company had submitted favorable language that ended up in the lottery law.
Ross dismissed the idea that the public should have access to legislators’ constituent letters as a way of preventing corruption.
“The main malfeasance we’ve learned about recently was people in men’s rooms and not documents,” she said, referring to evidence that Black took a cash bribe in a restaurant bathroom.
Most requests come not from average citizens but from members of the press, Reagan said, and it doesn’t preclude federal prosecutors or law enforcement who have court orders from getting records, as they did in Black’s case. Reporters also acquired e-mails in Black’s case and used them for revealing stories about the speaker’s activities.
Tony Rand, a Fayetteville state senator, said he has always assumed most of what he does is public but thinks preliminary work he does on legislation should be kept under wraps.
“If I introduce a bill, all of that should be public,” he said.
He’s also not very concerned about his e-mails. He said he barely uses them.
by Sarah Ovaska, Charlotte Observer staff writer