• Citizens have a right to information, and better governance comes with more transparency
  • The General Assembly is not as transparent as it could be and even became less transparent after passing a 2023 law limiting public records
  • North Carolina should add a transparency amendment to the state constitution

This is the third of a four-part series covering our findings in “Reforming North Carolina’s General Assembly.” Part One covered legislative pay, Part Two dealt with session limits, and Part Four will propose legislative leadership term limits.

We have heard that “sunshine is the best disinfectant.” As applied to government, the idea is that exposing incompetence and malfeasance helps eliminate them. In any case, it is widely believed that governments do not have the authority to keep secrets from citizens beyond a few exceptions.

Is that belief true? If so, is government transparency in North Carolina sufficient? If it is not, how can we best increase government transparency? I examine those questions in the context of the General Assembly.

Government Transparency Is Right and Good

American patriot 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.” We, as citizens, are less able to protect our freedoms and limit the scope and power of government if we do not know what public officials are up to.

Public accountability and elections become a sham if we do not know what government officials do in our name. Without accurate and complete information, citizens cannot assess officials’ performance correctly and vote accordingly. Transparency provides “safeguards against incompetence or malevolence” in government by preventing poor behavior by officials who wish to spare themselves from public embarrassment or, failing that, allowing citizens to know which officials to punish at the ballot box.

While some politicians believe allowing them to do their work in secret helps them be more effective, the evidence for that claim is mixed at best. Greater transparency is not associated with less legislative efficiency, increased polarization, or higher levels of party loyalty on roll-call votes. The opposite appears true regarding governments providing an environment that encourages economic growth and jobs. A 2006 study by World Bank economist Roumeen Islam found a positive relationship between government transparency and economic growth, or, more succinctly, “more transparent governments govern better.”

In short, citizens have a right to the information their government possesses, and more transparent governments serve citizens better.

The General Assembly Moved Backwards on Transparency

The General Assembly is not a benighted land of unchecked secrecy, but it is not as transparent as it should be and has recently even moved in the wrong direction.

North Carolina provides transparency through two laws. The state’s open meetings law states that “each official meeting of a public body shall be open to the public, and any person is entitled to attend such a meeting.” The statute is otherwise broad and includes some exceptions, such as for personnel matters or considering litigation. North Carolina’s public records law is similarly broad with some exceptions.

The General Assembly is ahead of other state legislatures by some measures of transparency but behind in others. For example, it is one of 11 state legislatures to earn an “A” rating in a 2019 report on how well state legislatures make their data publicly available. On the other hand, documents created by legislative employees (which could include draft legislation) are shielded from public records requests.

In addition, North Carolina does not have a presumption of transparency embedded in the state constitution. The lack of such protection allowed legislators to pass a law as part of the 2023 budget that made them the sole arbiter of “whether a record is a public record” (sections 27.9.(a) and 27.7.(e)).

In response, a coalition of organizations, including the John Locke Foundation, issued a public letter saying that the law “goes beyond safeguarding legitimate concerns and threatens to undermine the principles of transparency that North Carolina’s public records laws were designed to uphold.”

Making the General Assembly More Transparent

Given the benefits of government transparency, what can be done to make the General Assembly more transparent?

The obvious first step would be to repeal the portions of the 2023 budget that made legislators the sole arbiters of which documents are public records. Senate leader Phil Berger said the changes were needed to settle a conflict with the Department of Natural and Cultural Resources over which documents legislators had to turn over to the state archives. The legislation’s language is overly broad, allowing members of the General Assembly to decide that any document is not a public record for any reason.

At a minimum, the General Assembly could narrow the provisions to allow individual legislators to choose whether to turn over records to the Department of Natural and Cultural Resources while subjecting those records to public records requests.

The long-term solution would be to amend the North Carolina State Constitution to affirm citizens’ right to access government meetings and documents. Such protection can help ensure greater legislative transparency if it includes (a) a supermajority requirement for legislative exemptions to open meetings or public records laws and (b) “clearly exceeds” standard that enforces a “policy preference in favor of disclosure” unless the interest served by nondisclosure (such as protecting constituent privacy) outweighs that of disclosing a record.

A transparency amendment is hardly a new idea, and past amendment proposals have included the “supermajority” and “clearly exceeds” elements. A 2011 Republican bill required a three-fifths supermajority for the General Assembly to carve out exceptions to “by general law.” A 2024 Democratic proposal would have allowed limits to public records access only if “compelling public interest is protected by the limitation and the limitation is narrowly tailored to protect the public interest.” An ideal constitutional amendment would include both of those elements and apply to all three branches of government.

Getting a Transparency Amendment Will Not Be Easy

Getting to “yes” on a transparency amendment will not be easy. Neither of the proposals mentioned above got far. A 2008 study on government transparency found that “[g]overnments release information not because they necessarily have a desire to be ‘open,’ but because they have to.”

The General Assembly has passed transparency laws before, however, and the two amendment proposals noted here show that there is at least some appetite for reform. A combination of consistent political pressure and opportunity can help get a transparent amendment to a vote of the people.