Open government experts recap year's biggest changes
Posted March 16, 2016
Raleigh, N.C. — From the courtroom to the state legislature, 2015 was marked by a series of developments that continue to define the boundaries of North Carolina's open government laws.
Legal experts say expanding limits on what qualifies as a public record, cases governing the release of court databases and battles over open meetings had the most prominent impact over the last year. But as the celebration of transparency continues during Sunshine Week, open government advocates say they're also looking ahead to the next battleground over state records – and a public even more interested in obtaining them. Sunshine Week coverage
"We're becoming data consumers and creators to a huge extent, and it's not surprising that as we create more info and use information that the public wants more access, in the same trajectory, to that information," said Frayda Bluestein, professor of public law and government at the University of North Carolina at Chapel Hill.
Open meetings issues draw protests, lawsuit
In the fall of 2015, the UNC System Board of Governor drew criticism for raising the salaries of 12 university chancellors behind closed doors. It took days for the public to find out who got raises and how much those raises were, a move that prompted state lawmakers to demand answers and a promise to be more open from the BOG's lawyer at an oversight committee.
"Probably the biggest story or issue to me in 2015 was the transparency surrounding the University of North Carolina Board of Governors and its inability to follow open meetings law," Jonathan Jones, an instructor at Elon University and director of the N.C. Open Government Coalition, said.
While the state's public meetings law explicitly states that the actions of public bodies are to be "conducted openly," Bluestein said closed meetings are allowed for specific circumstances, including personnel discussions and some specifically exempted votes.
But Jones said the Board of Governors' actions were part of a pattern of several meetings that didn't comply with open meetings law, including one where they met in a small room and provided a video feed to members of the public, including some protesters.
Since the fall, board members have been trained in public records and open meetings by experts at the UNC School of Government. Newly hired UNC President Margaret Spellings has also pledged to make the board and university system more transparent as a whole.
"Current members got a strong dose of understanding the public's expectations," Jones said. "I think they were surprised by the backlash to the way they were conducting business."
Open meetings also played out in a lawsuit the Times-News of Burlington brought against the local school board. The paper wanted minutes of a closed meeting covering the negotiation of the Alamance/Burlington schools superintendent's resignation and $200,000 severance.
Attorneys for the board argued releasing the minutes would "frustrate the purpose" of the closed meeting, which is covered under personnel exemptions. While a North Carolina appeals court ruled that minutes like these aren't automatically exempt, judges decided that a court must review them to decide what to release and keep private.
Jones called the decision a "mixed win."
"Not necessarily great for transparency, but we got clarity, which is important," Jones said.
The Times-News eventually received a paragraph of notes from the meeting.
Terrorism exemption, budget transparency expands
Other changes originated from the state legislature.
The state budget passed in fall 2015, for example, made more public safety documents off limits under an expanded "terrorism exemption" to the public records law.
Although 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," the expanded provision would add documents detailing "patterns or practices associated with executive protection and security," as well as prison operations and responses to criminal activity.
"I think that's a significant change in the law – and not for the better," Jones said.
Jones said the danger of the measure is that it could be interpreted to include the governor's schedule. He pointed to reporting by WRAL News that revealed through public records that Gov. Pat McCrory and his team met privately with top Duke Energy lawyers at the governor's mansion amid pending litigation – and refused to say why.
"Those kinds of things have incredible value for the public because they get to see who the governor's meeting with and when," Jones said. "That can be really revealing."
But Bluestein said exemptions like these are often a function of officials trying to cover what they see as gaps in public disclosure.
"I think people have concerns about things that may not be protected under the statutes. There are legitimate reasons to prefer that information not get out," Bluestein said. "That's a balancing act that a government agency has to do."
Jones said part of his concern is that the measure further expands what he calls an overly broad law enforcement exemption in North Carolina when it comes to public records, especially compared to other states.
"I think this expands it beyond specific investigations and allows law enforcement agencies to claim that investigative techniques and information not related to investigations are exempted," Jones said. "We went from having incredibly broad law enforcement exemption to one that's swallowed up everything."
But Jones and Bluestein point out there were also legislative moves to provide more data to the public. One provision, for example, pushes local and county government to post more budget data detailing receipts and expenditures.
"It's clearly a statement about the idea of those things being proactively available to people," Bluestein said.
Crime and court data pose particular challenges
To Mike Tadych, a Raleigh attorney who regularly represents news organizations including WRAL News in public records cases, another big battle was an obscure lawsuit between data company LexisNexis and the Administrative Office of the Courts, which supports the operations of the state's judicial system.
LexisNexis wanted to get its hands on a massive database maintained by the AOC detailing charges and outcomes across the state's many courthouses for free.
But the AOC claimed it didn't technically keep the record, which the agency said was owned instead by each courthouse. It could charge for the database under a separate statute specifically governing access to court records, it said – and that argument prevailed in court.
"I see the LexisNexis case as a bit of a whack-a-mole," Tadych said. "You can get to it in various places, but it doesn't exist anywhere."
Jones said the case also established that specific statutes can trump the public records law.
The decision was particularly notable, Bluestein said, because it was the first case where the court has had to deal with how the records law applies to a database.
"It's an example of the complicated chore of trying to apply concepts of electronic records from a statue that was written before these records existed," Bluestein said.
In the coming months, she said the state will likely have to grapple with similar technological challenges that outpace the decades-old language of the public records law.
Police body cameras, for example, will likely need a legislative measure to correct a patchwork of policies covering whether footage can be released to the public.
"The problem is that depending on the content, you can't characterize all of body cams as a public record or not," Bluestein said. "You have to characterize particular information in the data."
Tadych said body camera footage is also more complicated than video from dash cameras, which are generally capturing what's happening out on the street. Officers are more likely to wear their body cameras into private places and get up close to the scene of a crime.
"It's an interesting privacy balance because generally speaking, police aren't going to drive their patrol cars into someone's house," Tadych said.