Civitas Review

Another wrong step for NC public records


Yesterday, representatives from the Civitas Institute joined the rest of the North Carolina Open Government Coalition in Durham for Sunshine Day, an annual event where leaders from various fields come together to discuss North Carolina's open records laws. How appropriate that this meeting of the minds took place less than two weeks after Senator Michael Lee introduced a bill to further erode this very body of law. Before delving into the specifics of Sen. Lee's bill, let's review the basics of North Carolina public records law.

North Carolina's public records law can be found in N.C. Gen. Stat. § 132. The statute defines "public record" as follows:

"Public record" or "public records" shall mean all [records], regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions.

The law even goes so far as to say the following:

The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people. Therefore, it is the policy of this State that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law.

If this sounds too good to be true, that's because it is. While § 132-1 paints a picture of a broad public records act that allows easy access to government records, the law goes on to list numerous exceptions — and here is where Sen. Lee's bill comes back into the picture.

Senate Bill 194 seeks to enact a law with the following title: "An Act to Provide that a Usage Contract Entered Into Between the State Ports Authority and a Carrier is Not a Public Record." The bill seeks to amend Section 136 of the general statutes (transportation laws) by adding the following language:

A usage contract entered into between the [Port] Authority and a carrier is not a public record within the meaning of G.S. 132-1. For purposes of this section, the term "usage contract" means a contract or agreement that contains terms and conditions involving terminal services related to maritime activities, including dockage, wharfage, cargo handling, storage, ro-ro service, transportation drainage, and other miscellaneous port services.

So, this bill seeks to hide from public scrutiny contracts entered into between state agencies and private entities. How, one might wonder, could anyone ever justify such a blatant attempt to obscure the actions of government from public scrutiny? If you're a veteran at this sort of thing, then you probably already know the answer — economic development, that always promised and rarely delivered benefit that has been used to justify failed corporate incentives, the demolishing of private homes for public use, and plans to hide even more more government expenditures from public scrutiny. And sure enough, Sen. Lee was par for the course in a recent newsletter to his constituents:

In keeping up with my promises to help increase economic growth in our county and state, I have introduced SB1904 to make sure that our ports in New Hanover County and our state receive every competitive advantage to ensure the best business climate. The NC Port Authority is the only east coast port without some competitive contract protections. This bill covers a very narrow set of contracts. Lease and operating agreements, like the Enviva project or the Cold Storage facility would not be covered under this bill. Also, purchase agreements, real estate transactions etc. would not be covered by this measure.

Sen. Lee's words may sound nice, but the reality is that these sorts of "narrow provisions" are how our public records act has been eroded more and more over time. The more we allow our state government to spend taxpayer money without being subject to public scrutiny, the more we will see bad deals that ultimately harm the taxpayer to the benefit of government contractors. Perhaps Sen. Lee and others should replace the words "competitive contract protections" with "ability to spend more taxpayer money without public scrutiny."

Senate Bill 194 was filed by Sen. Lee on March 5 and passed its first reading on March 9. It has since been referred to the Committee on Rules and Operations of the Senate.

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