North Carolinians deserve a more transparent General Assembly

During the Virginia Ratifying Convention for the United States Constitution, Patrick Henry noted, "The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.” Rulers, whether they hold their positions through force of arms, ensconcement deep within a bureaucracy, or (perhaps especially) election, depend on keeping their actions and intentions hidden from the public. Secrecy allows them to do what they want without fear of discovery and retribution from the people.

On the other hand, if they know the public can see what they are doing, they will behave better. Government transparency helps the media and policy advocates discover and expose malfeasance, allowing elected officials to punish wrongdoing bureaucrats and voters to punish elected officials accordingly. It likewise helps ensure that “failed or harmful policies are swiftly corrected.”

Therefore, government transparency is essential to protecting our liberties and ensuring better governance. As a World Bank report on the relationship between openness and economic growth put it, “More transparent governments govern better.”

How does North Carolina’s General Assembly rate on transparency?

Our state’s legislature is not a black hole of secrecy. Compared to most other state legislatures, it is rated well in making information on bills, legislators, committees, votes, and legislative events publicly available. The nature of legislatures also makes some level of transparency inevitable. As one legislator interviewed for the John Locke Foundation’s report, Reforming North Carolina’s General Assembly, put it:

"You know, every piece of legislation that is passed goes in front of the public, and there’s a vote in front of the public. There is a chance to debate motions, bills, everything … So, you know, nothing passes that hasn’t been seen before."

On the other hand, North Carolina is not one of the seven states that protect transparency in the state constitution. A 2021 report written for the University of Florida’s Brechner Center for Freedom of Information found that a constitutional transparency requirement can be effective if it includes either a “clearly exceeds” standard that demonstrates a “policy preference in favor of disclosure” or a supermajority requirement for any exemptions the legislature would like to carve out.

Instead, the General Assembly included provisions in the 2023 state budget that gave legislators sole discretion to decide “whether a record is a public record and whether to turn over to the Department of Natural and Cultural Resources, or retain, destroy, sell, loan, or otherwise dispose of, such records.” So, under current law, a legislative record is subject to a public records request only if the legislator holding it says it is. With a constitutional transparency requirement, this provision would have survived the supermajority requirement, but probably not the “clearly exceeds” standard.

So, what should the General Assembly do now?

First, repeal or narrow the 2023 record provision. Locke joined several media organizations in calling on the General Assembly to repeal it soon after the budget, saying that it “goes beyond safeguarding legitimate concerns and threatens to undermine the principles of transparency that North Carolina’s public records laws were designed to uphold.” Senate leader Phil Berger claimed the provision was necessary to settle a dispute with the Department of Natural and Cultural Resources over archiving documents. Still, they could have resolved that issue without giving legislators the power to keep any document secret.

Second, present a transparent constitutional amendment for a vote of the people. The amendment should include a supermajority requirement whenever legislators wish to exempt themselves from public records or open meeting laws. It should also include a “clearly exceeds” standard to make a constitutional presumption of transparency unless the need to keep a record or meeting private clearly exceeds the need for transparency. Such exemptions could include personnel records and protection of constituent privacy. Elements of such an amendment were proposed by Republicans in 2011 and Democrats in 2024.

Getting a transparency amendment through the legislature will not be easy. A 2007 study on transparency found that “[g]overnments release information not because they necessarily have a desire to be ‘open,’ but because they have to.” But members of both parties have sought a transparency amendment in the past, and a bipartisan push, combined with public pressure, could make a transparency amendment a reality.

The people of North Carolina deserve that much.

Andy Jackson is the Director of the Civitas Center for Public Integrity at the John Locke Foundation