Nothing to See Here

After decades of Democrats running North Carolina, the time had finally come for Republicans to take the wheel. For years, they had clamored for a General Assembly that would be more accountable to the public. With their new majority in 2011, Republicans wasted no time setting a new agenda. 

Little more than a month into power, a group of 33 Republicans (including six still in office) sponsored legislation to give North Carolinians a constitutional right to access public records and meetings, which would have added muscle to enforce state transparency laws. 

Now, more than 13 years later, the script has flipped. 

The party formerly committed to open government has had a change of heart. No longer should legislators’ records belong to the public, they argue. Instead, they say lawmakers ought to be trusted to disclose or withhold information as they see fit.

Buried in a 611-page budget draft last year, GOP leaders added a confusing 10-line provision giving lawmakers more authority over their records. After transparency advocates expressed concern with the language, additional provisions were inserted into a final 625-page budget to give current and former lawmakers the unilateral ability to decide which of their communications to sell, destroy, withhold or disclose. Communications about redistricting are also no longer a public record.

An analysis for my newsletter, Anderson Alerts, and The Assembly shows most lawmakers have taken advantage of their new ability to conceal information.

I asked all 170 lawmakers to provide me with at least one email of their choice. House Republicans proved least transparent, with just one of 72 members (Rep. Frank Sossamon) providing a document. To House Speaker Tim Moore, that response rate isn’t a bug in the system; it’s a feature.

“Why did that one respond?” Moore asked reporters this month.

Two other GOP House members responded to records requests, but deferred to Moore’s office to handle the request, which never provided any communications. By comparison, most House Democrats turned over at least one document.

Asked if legislators could be trusted to be the custodians of their own records, Moore replied, “Lawmakers can and should be. Lawmakers are elected by the voters and are given a responsibility to do a lot of things, to pass a budget, to pass laws for the good of the state. What we’ve seen in terms of the open records, the modifications, I think, are working just fine.”

A decade ago, Moore held a different view. He was a primary sponsor of the open-government constitutional amendment in 2011. Five other current Republican legislators supported that amendment, which didn’t end up passing. But none of those Republicans signed onto a bill Democrats introduced this month that would do the same. 

Who Did It?

Before last year, lawmakers had to comply with requests for communications they received to their legislative email addresses from lobbyists, constituents and others. A “legislative privilege” exemption meant they didn’t have to release internal discussions with staff. 

While Moore supports the public records changes in last year’s budget, he wasn’t the architect of the plan. He said Senate leader Phil Berger, Legislative Services Officer Paul Coble (who works for Berger and Moore), and legal staff crafted the language.

Berger maintains that last year’s state budget merely codifies what had already been a standard practice for how lawmakers responded to records requests. 

“We can have a conversation about whether or not the practice ought to be different,” Berger told reporters this month. “I have not seen a difference in how we respond to records requests because we view what was in the budget bill as a codification of the actual practice.”

A wide range of people and groups disagree with Berger’s interpretation of the change, including Democratic lawmakers, Republican and Democratic Council of State members, news associations, far-right political operatives, left-leaning advocacy groups, nonpartisan think tanks, and both conservative and liberal editorial boards. 

Berger has also defended the public records changes as a necessary solution to a dispute between Coble’s office and archives staff at the Department of Natural and Cultural Resources—an explanation the department rejects.

“Archives staff met with the Legislative Services Office in 2021 and last answered their questions on records retention nearly a year and a half before the legislative changes last fall,” said spokesman Schorr Johnson. “The Division of Archives and Records and the department are not aware of any dispute.”

Lauren Horsch, a spokeswoman for Berger, attributed the public records modifications made in the budget to Coble. Horsch said Coble wanted to ensure records that went to archives staff were indeed public records. 

In the years before and after the GOP takeover in 2011, Berger was widely seen as committed to bolstering transparency in state government. 

Forty-five days into Berger’s leadership, 23 GOP senators called for the constitutional amendment guaranteeing public access to government records and meetings. By enshrining public records and open meetings laws into the constitution, lawmakers hoped to give North Carolinians leverage if they encountered bureaucratic resistance.

The proposal never got a vote in Berger’s chamber because a companion bill was gutted in the House Rules Committee. Even so, the wide support reflected a strong appetite among Republicans for greater transparency. 

John Bussian, a lobbyist for the North Carolina Press Association, said Berger spoke at press association events and championed a bill bolstering public access to state personnel files in 2010.

“Phil Berger was the savior of the right-to-know in the General Assembly,” Bussian said. “Nobody else was willing to round up leadership support in either caucus, except for him.” 

The bill passed with near unanimous support around 3 a.m. as the 2010 short session wound down. Berger was the lone objector, saying he felt it didn’t go far enough in granting access to personnel files.

Since then, Berger has advocated for a more selective transparency—one that encourages open government outside the legislature, but not from within. In recent years, he’s called on the North Carolina Supreme Court, Governor’s Office and State Board of Elections to be more forthcoming. 

Meanwhile, with the changes Berger worked into the latest budget, General Assembly members have full control over their communications. The same cannot be said for those working in other state agencies.

Under North Carolina public records laws, information collected by state government agencies are the property of the people. And government workers are prohibited from destroying, selling, loaning or disposing of any public records without permission from the Department of Natural and Cultural Resources. 

In a 2021 news release, Berger’s office shared comments from a Republican legislator that “elected officials should not be given special treatment just because of their title or office.” 

The public agrees.

A survey of likely voters commissioned by the conservative John Locke Foundation last year found that 89 percent of Republicans, 93 percent of Democrats, and 94 percent of unaffiliated voters wanted state lawmakers held to the same transparency standards as other public officials.

Berger’s office says he has been consistent on the issue of transparency. “Our office regularly fulfills public records requests and aids other members of the Senate Republican Caucus when they are fulfilling requests,” Horsch said.

Moore has been far less transparent. He and his office haven’t responded to any of my records requests, nor a request for comment on his new stance on the constitutional amendment. 

You Talking to Me?

Of the 170 members of the General Assembly at the time the budget was enacted, 103 didn’t respond to any of four records requests, three from me and one from The News & Observer. The requests ranged from up to 10 years worth of communications to one email of lawmakers’ choosing. 

Among the 67 legislators who responded in some way to records requests were nine who didn’t provide any of their communications. The 58 who did turn over documents included 42 Democrats (27 House and 15 Senate) and 16 Republicans (15 Senate and one House). 

That’s a disclosure rate of 75 percent among Senate Democrats, 56 percent among House Democrats, 50 percent among Senate Republicans, and 1 percent among House Republicans.

Four lawmakers handed over all of their email records, four provided records for roughly one year, and 50 disclosed records just for one day, a single email of their choice, or a combination of the two.

Sen. Graig Meyer, an Orange County Democrat, has been the top critic of the public records law changes GOP leadership put forward. He turned over 142,675 emails dating back to 2014—the most of any lawmaker. He said he wishes Republicans would revisit the issue, and is frustrated with colleagues on both sides of the aisle for not responding to records requests.

“As a legislator, it makes me sad because I’m so disappointed in my colleagues for not having principle on this,” Meyer said. “As a citizen, it makes me angry that people are elected to office who won’t allow the public to access the records of the business that we elected them to do.”

A strange cast of bedfellows are united in their opposition to the public records law changes. Sloan Rachmuth, a conservative pundit who managed Michele Morrow’s successful primary campaign against Republican state superintendent Catherine Truitt, said she is mortified to find herself in the position of agreeing with Democrats.

“They make these other members co-sign onto tyrannical things,” Rachmuth said of Berger and Moore. “They put the integrity of our government at stake and the reputation of Republicans at stake. And right before an election, it’s a terrible look.”

Common Cause North Carolina, a left-leaning advocacy group that has successfully sued Republicans in redistricting cases, agrees. “It just really begs the question: what are you trying to hide?” said Ann Webb, the group’s policy director.

While many organizations forcefully pushed back on the General Assembly’s efforts to undermine the public’s access to information, the fervor hasn’t endured. Eight months later, no lawsuits have been filed.

Phil Lucey, executive director of the North Carolina Press Association, said a few outlets were considering suing over the records changes, but he hasn’t heard of any of them actually moving forward. He said immediate solutions are unlikely.

“We will continue to fight for a repeal or to get this fixed,” Lucey wrote in an email.

‘A Huge Red Flag’

Lawmakers, news associations, and advocacy groups each said they were waiting to see how others would act before they stepped in. Lawmakers wanted to see whether news organizations would sue. News outlets wanted to see if lawmakers would push through a bill making technical corrections to last year’s budget. And advocacy groups had other priorities on their plate.

Meyer was quick to acknowledge that his proposed constitutional amendment would be dead on arrival, but said he wanted to lay out a roadmap for a successful lawsuit, and force GOP leaders to reconcile their past and present views.

Critics have also taken aim at the way the public records changes were made. Because the provisions came in the form of a negotiated budget agreement, they breezed through floor votes in the House and Senate in two days, giving no opportunity for public comment or for lawmakers to offer amendments.

“Using tactics of secrecy to increase secrecy in government is a huge red flag,” said Common Cause’s Webb.

Democratic Gov. Roy Cooper allowed the budget–and by extension, the public records provisions–to become law without his signature. That decision was made in large part due to the budget being tied to Medicaid expansion, Cooper’s top policy objective.

At an April news conference, Cooper condemned lawmakers for using the budget to make the General Assembly less transparent. 

“There should be public records provisions for all government officials, including the legislature, particularly when they have amassed so much power to appoint people to commissions that control hundreds of millions of dollars,” Cooper said. “I support changes in the law that would open up public records for General Assembly members. It’s shameful that they don’t do that.”

Without intervention, critics worry that dubious activities in the legislature will never see the light of day. Emails have played a role in revealing how the legislature sometimes operates in questionable ways. 

Former Democratic state House Speaker Jim Black was sentenced in 2007 to more than five years in federal prison for taking thousands of dollars in cash from chiropractors while a professional group had pending legislation under consideration. 

A three-judge panel struck down a voting bill in 2016, concluding that GOP lawmakers targeted Black residents “with almost surgical precision.”

Republican state Rep. Destin Hall, who’s expected to lead the House next year, praised Republicans in 2021 for overseeing “the most transparent redistricting process in state history.” But after a lawsuit was filed, Hall admitted to using secret “concept maps” when drawing legislative boundaries. Hall’s legal team said the maps were “lost and no longer exist.” 

In all three examples, emails and testimonies from state lawmakers played a critical role in making the public aware of questionable or unlawful activities. But if the same events happened today, the public likely wouldn’t know.

“You can’t let the fox guard the hen house unless you just want to see feathers at the end of the day,” said Senate Democratic Leader Dan Blue.

GOP insiders say the fears are overblown. “I don’t see us making any changes to it,” Moore told reporters last year. “And, really, I think a lot more noise has been made about this really than is warranted.”

Behind the Scenes

The emails 58 lawmakers released offer insight into key moments from the past legislative session, intraparty drama, and personality conflicts.

In 2021, Meyer wrote that a prominent Democratic labor activist who is now a state party official was “a class one asshole.” A year later, he accused a fellow Democratic legislator of not understanding the budget process. 

“That is a bullshit answer she gave you. It shows that she doesn’t understand the process nor the strategy,” Meyer wrote.

In reviewing emails from the current legislative session, one trend emerged: Strong divisions over proposals to legalize sports betting, video lottery terminals, and rural casinos.

Rep. Julie Von Haefen, a Wake County Democrat known for her support of abortion access and combative replies to GOP critics on social media, shared a praiseworthy email she received from an unlikely source. Mark Creech, a staunch conservative who leads the Christian Action League, praised Von Haefen and others for their opposition to sports betting.

“Commercialized gambling is a form of economic predation, grinding the faces of the poor into the ground,” Creech wrote. “It benefits multinational corporations while oppressing the lower classes.”

Berger provided 288 pages of emails he received following an effort on his part to bring a new casino to his Rockingham County district and other parts of the state. Nearly all the comments Berger received were highly critical.

“Please do not go through with the casino proposal,” one Guilford County voter pleaded. “I’ve been a conservative for over 40 years, but if this goes through, I will do something that I’ve never done before. I will vote for your Democrat opponent. I’ve NEVER voted for a Democrat. NEVER.”

Berger didn’t respond directly to those who wrote to him. Instead, that responsibility fell to his legislative assistant, Abbigail Clark. 

On August 31, Berger’s office sent a boilerplate response to constituents saying that “expanding commercial gaming in North Carolina is still in the discussion phase, so no proposal has been officially introduced at this point.”

Berger’s office declined to release the names or contact information of constituents who reached out to him, thus preventing The Assembly from speaking with them.

Campaign Promises

Barring any lawsuits, the debate over public records is unlikely to be addressed until 2025 at the earliest. Any serious discussions about changing the law are likely contingent on a shift in the makeup of the legislature or the political will among statewide officials for increased transparency.

Top candidates for statewide office say they want the legislature to reconsider its actions. Hal Weatherman, the GOP lieutenant governor candidate who would administratively preside over the Senate if elected, wants the General Assembly to be more transparent in assembling the budget.

“I’m all in favor of transparency,” Weatherman said. “I believe that daylight shined on things is a good thing and in the public’s best interest.”

Democratic state Sen. Rachel Hunt, who is running for lieutenant governor, was among the handful of lawmakers who provided at least some of her legislative communications. She said she voted against the budget in part because of the public records provisions.

“I believe in a transparent government where citizens can hold their elected officials accountable,” Hunt said in a statement. 

Republican Lt. Gov. and gubernatorial candidate Mark Robinson told me in October that he’d follow up on a question about the public records law changes. He never did.

Instead, Robinson’s campaign spokesman Mike Lonergan said in an emailed statement, “While we can’t speak to the intent of the legislature, as lieutenant governor, Mark Robinson has made transparency a top priority and will continue to do so as governor.”

In 2021, Robinson came under scrutiny for assembling a task force to investigate claims of indoctrination in K-12 public schools, which produced a report. The names of those who submitted complaints were later redacted. The task force also appeared to violate the state’s open meetings law by not providing any advance notice to the public for when the group met, nor any meeting minutes, list of attendees or audio or video.

Democratic Attorney General and gubernatorial candidate Josh Stein thinks voters ought to have greater access to legislative communications. “Elected officials should be working to make our government more transparent and accountable, not less,” Stein said.

Stein has generally pushed for greater governmental transparency, particularly through a database tracking opioid settlement funds.

U.S. Rep. Dan Bishop, the GOP nominee for attorney general, didn’t respond to a request for comment. 

U.S. Rep. Jeff Jackson, a former state lawmaker who is now running against Bishop, said, “Lawmakers shouldn’t be exempting themselves from public records requests. The public’s trust in elected officials is already at rock bottom. You have to show them a higher level of transparency, not put more walls up.”

Correction: This article originally said that four lawmakers handed over 10 years of email records. Some of those legislators have not been in office for 10 years. The article has been changed to say four lawmakers handed over all of their email records.