Suit against McCrory asks: How much of his travel does public have right to know?
Posted October 5, 2016
Raleigh, N.C. — The state should be able to heavily redact or withhold records related to the governor's travel if it was for personal or political purposes, lawyers for Gov. Pat McCrory argued in Wake County Superior Court on Wednesday.
"Records of private activity are simply not what the law requires to be disclosed," Dickson Phillips, a private attorney representing the governor and the Department of Public Safety in a case brought by Real Facts NC.
Real Facts, a politically active nonprofit group that favors Democratic candidates and causes, brought the suit in relation to material it sought related to dozens of trips the governor took during the first three years of his administration. That request was first filed in July 2015 but only fulfilled this year as the group sued.
The two sides appeared in court before Judge Allen Baddour. He did not immediately rule but did say he was "unlikely" to dismiss the case out of hand because there were multiple facts and points of law in dispute.
McCrory's office contends it has fulfilled the request and that the suit should be dismissed. But lawyers for Real Facts contend that the governor has either failed to provide records related to 27 trips that were reported in the news media or has heavily redacted much of the information it did provide. In other cases, records were provided, but information such as starting and ending points was redacted.
The case involves issues similar to a suit brought by a coalition of media companies, including WRAL News, but deals with a specific set of records rather than questions of process for all public records requests.
While the two sides in the Real Facts case spent much of a two-hour court hearing Wednesday bickering over what exactly has or has not been requested in provided, the heart of the case is an argument over whether the state has greater latitude to shield information related to personal and political travel, even if it involves state vehicles like a helicopter or the provision of security, which is a near-constant presence for McCrory.
Daniel Johnson, a lawyer for Real Facts, said that McCrory was trying "to carve out a massive exemption to what is a robust public records law in North Carolina." He argued that, without certain information, it would be impossible for taxpayers to ensure that the governor or his campaign reimbursed the state for taxpayer-provided travel that was not due to state business.
"That position is not in keeping with the statutes or the public records law," Johnson argued.
Phillips, saying that there was not a lot of case law on the topic, pointed to one assessment of the public records law that contends personal business transacted over public resources was not necessarily a public record that had to be disclosed. So, the governor's visit to a campaign rally or a family member's wedding falls outside the scope of the public records law.
"That's simply not a public record because it doesn't deal with the transaction of public business," he said.
Other public records experts disagree.
"Any time the governor is using state resources to travel, that's clearly a public record, whether he's using state resources for personal travel, campaign travel or the state's business," said Jonathan Jones, a lawyer and former journalist who heads the North Carolina Open Government Coalition. "I don't think there's a whole lot of gray area there."
More problematic, Jones said, were assertions by lawyers for McCrory about how to apply recently enacted public safety exemptions that shield "pattern and practice" of the executive protection detail from public record.
"It was a really poorly written new exemption that was put into place, and it's not particularly clear what it covers and what it doesn't cover," he said.
In court, Phillips argued that certain information about the number of troopers accompanying the governor or arrival and departure locations could open the governor to a threat.
Johnson argued that the state had applied that exemption in an overly broad way.
"Once public resources are being used to conduct that trip, it becomes the public's business," Johnson said.