From the Winston-Salem Journal (4/2/09): Legislators have long thought that they deserve special dispensation from government's obligation to conduct public business openly. They are wrong, and the attorney for the N.C. Open Government Coalition has correctly called them on it.
Hugh Stevens, a veteran First Amendment and newspaper lawyer, publicly disagreed with one of the legislature’s top lawyers earlier this month. Stevens said that legal advice issued by staff attorney Walker Reagan is incorrect.
Reagan had told House Speaker Joe Hackney and Senate President pro tem Marc Basnight that many of the e-mail messages and letters they receive are not public records. He advised that the state’s public-records law has an exemption that gives legislators special treatment in this regard.
During its last year, the administration of former Gov. Mike Easley was engaged in a contentious debate with newspapers regarding the public nature of e-mail sent to, and from, state government accounts. Eventually, Easley relented and made the records public. Gov. Bev Perdue has ordered her aides to consider all state e-mail to be public.
Reagan and Stevens are top-flight attorneys, so we’re sure that each can make a convincing argument in a court of law. But this is more an issue for the court of public opinion. And in that court, Stevens’ argument is much stronger.
Legislators have written many exemptions into law for themselves and they regularly conduct meetings in private that, were any county commissioners to do the same, would be considered violations of the Open Meetings Law. As Stevens wrote in his letter to the two leaders, “If the General Assembly were to claim exemptions for itself from an obligation that it has imposed on other public officials, the implicit message would be ‘openness for thee but not for me.’ “
Legislative leaders feel that legislators cannot be bothered with the public crush that would result from business done in the open. That’s why the final version of the budget is usually pulled together in closed-door meetings.
Legislative possession of the power to write itself an exemption does not, however, eliminate the obligation to conduct business in public.
To his credit, Hackney has not taken a position. He’s waiting to see the legal arguments from both Stevens and Reagan. He might also want to consider his strong 30-year record of supporting openness in government.
E-mail to and from government accounts is a public record. There’s no debate about that. The only question here is whether the legislature deserves special dispensation.
The answer to that question is no.
Winston-Salem Journal Staff Editorial