Budget compromise includes broader 'terrorism exemption' to public records law

Posted September 15, 2015

— The long-awaited state budget compromise lawmakers released this week will make more public safety documents off-limits under an expanded "terrorism exemption" to the state's open records law.

Current state law bars the release of "specific details" of security and infrastructure plans, as well as the release of plans to "prevent or respond to terrorist activity." But the expanded provision would add exemptions for documents that detail "patterns or practices associated with executive protection and security," as well as prison operations and responses to criminal activity.

A version of the measure originally appeared in the budget passed by the Senate in June and made it into the compromise version negotiated by House and Senate leadership.

Open government advocates say they're concerned state officials will interpret the expanded exemption as closing off access to records such as travel details and law enforcement conduct. But public safety officials say the changes are necessary to protect government leaders and the work of investigators.

State agencies have occasionally used the existing terrorism exemption in the past to deny access to public records. Those denials have included which law enforcement agencies received surplus tactical military equipment from the U.S. Department of Defense, as well as information about the potential dangers of dam breaches to residents and property downstream.

Sarah Preston, acting executive director with the American Civil Liberties Union of North Carolina, said the new exemption is particularly concerning because it's so broadly written. Banning the release of "practices to prevent or respond to criminal, gang, or organized illegal activity," could apply to documents such as use-of-force policies citizens can use to hold law enforcement agencies accountable.

"This is a time when the public wants more oversight into police practices, rather than less," Preston said.

She said some agencies may interpret the measure to exempt information on the technology and equipment agencies use to investigate and enforce laws, including new controversial gear such as drones and StingRay cell surveillance devices. The same language in the measure will also apply to prison operations.

"Those are certainly things the public might want to know about," Preston said. "It's how their tax dollars are being spent. It's how are citizens are being treated."

Calls to all three chairs of the Senate Appropriations Committee on Justice and Public Safety were not returned, and the state Department of Public Safety did not respond to requests for comment Tuesday. But in July, spokeswoman Diana Kees said in an emailed statement agency leaders have "sufficient reason" to support the change.

"The Department of Public Safety must be vigilant to counter the threats that are often made against state employees and inmates," Kees said. "We must be able to provide security and respond to gang activity to mitigate these threats."

Preston said there are a number of existing exemptions, including those that ban the release of certain personnel information and investigation files, that already allow law enforcement to do its job. But where there are specific concerns, she said, more tailored, narrow language would do a better job of balancing public safety with the public's right to know.

"To draft such broad policies, you're denying the public information they need to hold government accountable for bad actions," she said.

After gaining tentative approval from the state Senate less than 24 hours after its release, and with more votes scheduled this week, the proposal is likely to survive a budget process now two-and-a-half months overdue.


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  • Matt Wood Sep 16, 2015
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    "as well as prison operations and responses to criminal activity"

    So when a prisoner dies in custody or excessive police force is used, they don't have to release records about it.


  • Randy Riddle Sep 16, 2015
    user avatar

    Could any records associated with legislator's responses to the Moral Monday protests be withheld as "responses to criminal activity"?

  • Eric Hammond Sep 15, 2015
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    may I point out the specific line: "...documents that include information regarding patterns or practices associated with executive protection and security."
    Read that as "what ever evidence of conflict of interest and/or illegal activity the Governor's minions declare it a policy to shred"
    and the line "...practices to prevent or respond to criminal, gang, or organized illegal activity."
    might as well say "we don't have to release any information about ongoing illegal seizures of personal property for the profit of the executive branch"

    HEIL McCrory!!!