With the General Assembly about to head home early last Friday morning, one of the strongest “right to know” voices in the NC House, Rep. Josh Dobson, advanced a public records access-neutral provision in SB 168 as it made its way through the House. The provision, which made no change in NC public records law, restates the confidential status of records generated by local law enforcement agencies when those records are delivered to a medical examiner at the county or state level.
At the same time, NCPA-led forces in the House stopped a provision in the 2020 “Regulatory Reform” bill that would have turned the NC Public Records Law on its head. SB 374 contains language proposed by the NC Secretary of State’s Office that would allow that office’s corporate securities investigator (“Administrator”) to accept records and keep them secret from the public if requested to do so by a person or company of interest to the Secretary of State. The power of a government official to make such a promise upon request by an interest outside government exists nowhere in NC’s Public Records Law, or in the public records law of any other state for that matter. Fortunately, by the time the General Assembly temporarily recessed on Friday morning, the bill had been sent back to the House Rules Committee – thanks to strong efforts by Rep. Mitchell Setzer (R-Catawba)-- to be held until the access-damaging language can be removed.
The Secretary of State’s bill presented a perfect example of the need for a “Sunshine Amendment” to the NC Constitution, the object of HB 1111 filed by Reps. Steve Ross (R-Alamance) and Mitchell Setzer at the outset of the short session. And despite the legislative headwinds impacting the session, the Sunshine Amendment remained alive at the end of a week that saw lawmakers on the floor of the General Assembly until early Friday morning.
In the early June run-up to last week’s flurry of legislative activity, bills concerning everything from teacher pay raises to reopening gyms and bars were considered and passed by both the NC House and Senate. But the real movement came the week of June 22 when the House began considering new versions of bills that had “crossed over” from one chamber to the other, especially those Senate bills that were pending before the House. And so it was that the 2020 “Regulatory Reform” bill containing the public records law-damaging provision proposed by the Secretary of State was fashioned out of a once straightforward state government “pension” clarification bill. And SB 168, which was originally unrelated to public records, became the home of Rep. Dobson’s provision that reaffirmed the confidentiality of records delivered to a medical examiner by law enforcement, until the medical examiner completes his or her investigation or autopsy and issues a final report.
Records generated by law enforcement agencies as part of an investigation into a homicide, death by accident, or other death have historically been confidential under NC public records law in the hands of law enforcement and have retained confidential status when delivered to a county or state medical examiner. And these law enforcement agency-originated records are not typically made public until the medical examiner completes an autopsy – when an autopsy is undertaken – and a final report on the cause and circumstances of death. The medical examiner’s confidential treatment of these law enforcement-generated records, whether a death occurs in a jail or elsewhere, is supposed to be maintained under current NC public records law while the medical examiner completes the investigation. (How well NC Press Association member newspapers know the public records landscape surrounding medical examiners after the epic battle 8 years ago that saved public access to autopsy photos taken by medical examiners in the state!) Consequently, while Rep. Dobson’s statement that his provision in SB 168 “doesn’t change the status of confidentiality” of law enforcement investigation records in the hands of a medical examiner is correct, the duration of records secrecy for pending investigations by law enforcement and, by extension, medical examiners points to the need for future legislation to improve access to these and other records under NC public records law.
On that note, as reported by the News and Observer on June 17, Governor Cooper recently offered some hope that public access to police violence records, uniformly treated as confidential “personnel” records by NC law enforcement, may be formally considered and recommended by the Governor’s new Task Force for Racial Equality in Criminal Justice. Attorney General Josh Stein, who along with Governor Cooper is running for re-election in 2020, co-chairs the Task Force. With the almost complete lack of public access to these records under NC public records law – and in light of the fact that the vast majority of other states allow public access to these records and other hiring, firing, and performance records for government employees - the Governor and the Attorney General could seize this opportunity to implore the General Assembly to open these records and put North Carolina in the vanguard of top open government states. Stay tuned.