‘Openness for thee, not me’

Pat McCrory’s mayoral emails, which are public.
Pat McCrory’s mayoral emails, which are public. LISA THORNTON

Want to read Charlotte Mayor Dan Clodfelter’s emails? Go ahead. City Manager Ron Carlee’s? County Commissioners Chairman Trevor Fuller’s? Just ask.

Under N.C. law, most of those emails are public records, as long as they pertain to public business. It’s common sense: If publicly elected, publicly paid officials are doing the public’s business, their work – done largely through email these days – is public record, with a few exceptions.

But Sen. Bob Rucho’s? Sen. Phil Berger’s? House Speaker Tim Moore’s? They can tell you to get lost. The law doesn’t apply to them, legislative lawyers say.

The question arose last week in a dispute between Rep. Donny Lambeth, a Forsyth County Republican, and a whistleblower named Joe Vincoli. Lambeth said he had assumed emails from constituents were public records, but after talking with legislative staff, now believes they are not.

Walker Reagan, the head of the legislature’s research division and a former legislative counsel for the General Assembly, argues that legislators’ emails to and from constituents are not public records. Given that local officials’ emails are public, Reagan’s approach is one, as First Amendment lawyer Hugh Stevens once said, of “openness for thee but not for me.”

The arguments

Reagan employs at least three rationales:

  • State law says records are public if they are “made or received pursuant to law or ordinance in connection with the transaction of public business.” Constituent emails may be connected to the transaction of public business, but constituents are not required by law or ordinance to send them, and legislators are not required by law to receive them.
  • If a legislator shuffles constituent emails off to staff, they are then protected under a provision in state law that says documents between a legislator and staff are confidential.
  • Legislators are protected by legislative immunity in any case.

The N.C. Supreme Court, the N.C. attorney general’s office and other experts see things differently.

In a 1981 case between the (Raleigh) News & Observer and the Wake County Hospital System, the court ruled that the “made or received pursuant to law or ordinance” includes “in addition to those records required by law, those records that are kept in carrying out lawful duties.”

In 2002, legislative research director Terry Sullivan asked the attorney general’s office for an opinion on whether legislators’ emails pertaining to redistricting were public record, including emails from constituents. Then-Chief Deputy Attorney General Eddie Speas noted that state law doesn’t directly address the question of constituent emails. The courts, Speas said, usually take that silence as a sign that the legislature meant for the record to be public. So, he said, it was the attorney general’s opinion that constituent emails about redistricting are generally public. There’s nothing about redistricting that would give it different status than emails on other topics.

Stevens and other experts I talked with dismissed the notion that legislators could evade public records law simply by passing constituent emails on to staff. That would be like local officials making everything private by having the city or county lawyer read it and then arguing it’s protected under attorney-client privilege. They also argue that legislative immunity does not give legislators a blanket exemption to public records laws. If it did, legislators wouldn’t have needed to write into law some of the specific exemptions that they have.

Courts need a case

So opinions differ, and the question has never been settled by North Carolina’s appellate courts. A court challenge would be helpful in establishing an answer.

If the court ruled in favor of transparency, legislators would then have to decide: Do we want to weather the political fallout of explicitly saying that we don’t have to follow the laws that other public officials do?