North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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REPLY TO: Edwin M. Speas, Jr.

(919) 716-6400 FAX: (919) 716-6750

February 14, 2002

Mr. Terrence D. Sullivan, Director Research Division North Carolina General Assembly Suite 545, Legislative Office Building 300 N. Salisbury Street Raleigh, North Carolina 27603-5925

Re: Advisory opinion: Public access to legislator’s redistricting communications; custodians of records; N.C. GEN.STAT. §§ 129-133; N.C. GEN.STAT. § 132-1, et seq.

Dear Mr. Sullivan:

On February 5, 2002, we provided you with our opinion about whether certain redistricting plans personally created by legislators without the involvement of legislative employees and stored in the legislature’s computer system are public records. You have also sought our opinion about certain related matters. Specifically, you have asked whether written or electronic communications of legislators about redistricting plans are public records. The categories of communications encompassed by your request include (a) communications between a legislator and legislative employees; (b) communications between a legislator and a legislative employee serving as legal counsel to the legislator; (c) communications solely between legislators; and (d) communications between a legislator and a member of the public.

The status of communications between a legislator and legislative employees, including legislative employees serving as legal counsel, is resolved by the express provisions of G.S. §§ 120130, 131 and 133. Before the enactment of a redistricting plan, all written and electronic requests by a legislator to a legislative employee for information or to draft a plan are confidential and are not public records; upon the enactment of a plan all those communications become public records. The General Assembly has not elected to treat communications with legislative employees serving as legal counsel any differently than communications with other legislative employees; it in fact has elected to treat them the same. For purposes of G.S. §§ 130, 131 and 133, the term “legislative employee” is defined to include “counsel to members and committees of either house of the General Assembly or of legislative commissions, who are paid by State funds.” G.S. §120-129(2) (emphasis added).

The confidentiality of communications between a legislator and a member of the public and between legislators themselves is not expressly addressed by G.S. §§ 120-130, 131 or 133. As noted Mr. Terrence D. Sullivan February 14, 2002 Page 2

in our February 5, 2002, advisory opinion, the courts ordinarily construe legislative silence with regard to the confidentiality of a record to constitute an intention by the legislature to make the record a public record. See News and Observer Publishing Co. v. Poole, 330 N.C. 465, 474, 412 S.E.2d 7, 13 (1992). We are not aware of any countervailing rule of statutory construction that might apply to take communications between a legislator and a member of the public outside the ordinary rule of construction. We therefore are of the opinion that written and electronic communications between a legislator and a member of the public about redistricting are generally public records, regardless of whether those communications occur before or after the enactment of a redistricting plan.

The legal significance of the General Assembly’s silence with regard to written and electronic communications solely from one legislator to another is much less clear. The silence of

G.S. §§ 120-130, 131 and 133 regarding the status of communications solely among legislators produces an incongruous, if not illogical, result: communications between a legislator and a member of the legislative staff are not public records but the same communications between two legislators would be public records. It is certainly plausible that this silence does not reflect an intention by the legislature that those communications should be public but a belief that such communications are privileged and did not need specific protection. Just as we were unable in our February 5 advisory opinion to resolve the legal significance of the General Assembly’s silence with regard to redistricting plans prepared by legislators themselves, so too are we unable to resolve the legal significance of the General Assembly’s silence with regard to communications solely between legislators. This uncertainty can best be resolved by the General Assembly itself.

You have also asked whether each legislator is the custodian of his or her own e-mail for purposes of complying with the Public Records Act. We understand undeleted e-mail can be retrieved directly by each legislator from his or her own computer. E-mail deleted from a legislator’s computer must be retrieved from the legislature’s computer system.

“Every custodian of public records” is responsible for permitting the copying and inspection of public records. G.S. §132-6(a). The meaning of the term “custodian” is in effect defined by G.S. § 132-2. It provides: “The public official in charge of an office having public records shall be the custodian thereof.” As a separately elected member of the House or Senate, each legislator is plainly “[t]he public official in charge of an office having public records,” in this case e-mail. The phrase “having public records” clearly extends to undeleted e-mail in the legislator’s computer. While the phrase “having public records” could be more precise, it is sufficiently broad to encompass documents not in the legislator’s immediate possession and stored outside his or her office, e.g., archived documents or undeleted e-mails stored in the legislator’s computer system. In this regard, we understand that the Legislative Services Commission is undertaking the adoption of a policy clarifying that each legislator is custodian of his or her e-mails and electronic records stored in the computer system.

In sum, in our opinion (a) communications between legislators and members of the public about redistricting issues are generally public records without any limitation as to the date of the Mr. Terrence D. Sullivan February 14, 2002 Page 3

communications, (b) communications between legislators and legislative employees, including employees serving as legal counsel to members, become public records only upon the date of the enactment of the redistricting plan which is the subject of the communications and (c) each legislator is properly treated as the custodian of his or her e-mail communications whether directly available in the legislator’s computer or stored in the legislature’s computer system. We are unable to determine the legal status of communication solely between legislators about redistricting and recommend that the General Assembly address the issue.

Sincerely,

Edwin M. Speas, Jr. Chief Deputy Attorney General

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