Since June 2016, the Observer has been seeking House Bill 2-related emails from the office of North Carolina House Speaker Tim Moore and Senate Pro Tem Phil Berger, but both lawmakers have refused to provide any documents.
Because the request asks for emails among legislators, legislative staff and/or constituents, they “do not meet the definition of ‘public record’ as set forth in Chapter 132 of our General Statutes and would remain confidential under statutory legislative confidentiality and legislative privilege,” Bart Goodson, Moore’s general counsel, and Andrew Tripp, Berger’s general counsel, wrote in a Nov. 4 letter to the Observer.
The letter also noted that HB2 had resulted in multiple lawsuits and that “an issue that has yet to be resolved in these lawsuits is the extent to which legislative email communications will be discoverable at all.”
HB2 is the controversial 2016 state law limiting protections for LGBT individuals that was removed from the books in March in a compromise reached between the legislature and Gov. Roy Cooper.
This year, amid the debate over HB2’s repeal, the Observer asked for additional emails from Moore and Berger, from January and February, but received a similar reply.
In an email in April, Goodson said that his office’s “substantive analysis remains the same” and he referred the Observer to the Nov. 4 letter.
“As you are aware, this (HB2-related) litigation has been stayed,” Goodson added. “As such, this discoverability issue has yet to be resolved at this time.”
Jonathan Jones, director of the North Carolina Open Records Coalition, said Moore and Berger’s reasons to withhold records don’t hold water with him.
Legislative privilege is not part of North Carolina open records law, and hasn’t been ruled on in court, he said. It apparently stems from a white paper written by a legislative staffer several years ago, Jones said.
Lawmakers are typically concerned about disclosing communications among legislators or with constituents, Jones said. (The legislature has exempted itself from revealing communications between lawmakers and staffers about specific bills, he noted. Attorney-client privilege would also cover emails about specific litigation.)
“To my view, (legislative privilege) doesn’t extend to cover these kind of communications that legislators are claiming,” Jones said. “Until it’s either put into law through statute or found to be existing in the law through the court system, it’s really a lot of speculation.”
The Observer made requests for emails to Cooper’s predecessor, Pat McCrory, in April 2016 and received thousands of pages of documents in October of that year, but only after the paper filed suit against the governor. The Observer requested emails from Cooper in June and received more than 500 pages of messages this month.