Are draft redistricting plans drawn by a North Carolina legislator personally, using the legislature's computer system but without staff help, public records the public can demand to see?

Plain-English summary

The Research Division Director of the General Assembly asked the AG whether the public could inspect and copy a redistricting plan a legislator personally drew without staff help and stored on the legislature's computer system.

Chief Deputy AG Edwin Speas and Assistant AG Daniel Addison concluded that the statutes did not answer the question clearly. G.S. § 120-130 and 131 make a legislator's requests to legislative employees, and documents prepared by employees in response, confidential. G.S. § 120-133 strips that confidentiality from redistricting-related staff documents once the plan becomes law. None of those provisions speaks to plans drawn by legislators themselves.

The AG identified two competing canons that pointed opposite ways. Under News and Observer Publishing Co. v. Poole, the courts ordinarily read legislative silence on confidentiality as a decision that the record is public. Apply that canon, and a legislator's personally-drawn plan is a public record. But under Commissioner of Insurance v. Rate Office, statutes may not be construed to produce absurd or bizarre consequences. Treating a legislator-drawn plan as public while the same plan drawn by staff is confidential would produce an arguably bizarre outcome. The AG said this second rule "would seem more compelling" here, although courts could disagree.

The AG also raised, but did not resolve, a legislative-privilege overlay. Northfield Development Co. v. City of Burlington recognized a testimonial privilege under North Carolina law shielding legislators from being compelled to explain their reasons for legislative actions. No North Carolina case had extended that privilege to records, but federal authority like Peoples Temple of the Disciples of Christ supported the possibility. If the legislature believed legislators' own plans were already protected by legislative privilege, that would explain the statutory silence.

The same ambiguity persisted after enactment. G.S. § 120-133 specifically converts staff-prepared redistricting records to public records once a plan is enacted, but again says nothing about plans drawn by legislators. The AG concluded that the General Assembly should resolve the ambiguity itself.

Currency note

This opinion was issued in 2002. Anyone responding to a current request for legislator-drawn redistricting drafts should check current statutes and decisions on legislative records before relying on its analysis.

Background and statutory framework

The legislative-confidentiality provisions. The opinion says G.S. §§ 120-130 and 131 generally make legislators' drafting and information requests to legislative employees, and documents the employees prepare in response, confidential. G.S. § 120-133 makes those staff-related redistricting materials public after enactment of the relevant plan.

The question presented. The requester described a plan personally prepared by a legislator without staff assistance and still stored in the legislature's computer system. The opinion observed that the cited confidentiality statutes did not address such plans.

Poole and statutory silence. News and Observer Publishing Co. v. Poole, 330 N.C. 465, 474 (1992), held that "The legislature knows how to extend the scope of protection of confidential records . . . . Where the legislature has not included such broad protection . . . we will not engraft it." That suggested a legislator-drawn plan, unlike a staff-drawn plan, was public because no statute made it confidential.

The absurd-results canon. Commissioner of Insurance v. Rate Office, 294 N.C. 60, 68 (1978), said it is "always presumed that the legislature acted in accordance with reason and common sense," and statutes may not be construed to produce "absurd or bizarre consequences." Treating a plan drawn by a legislator as public while the same plan drawn by staff was confidential arguably ran into that bar.

The legislative-privilege overlay. Northfield Development Co. v. City of Burlington, 136 N.C. App. 272, 282 (2000), recognized a testimonial privilege protecting legislators from being compelled to explain legislative reasons. The AG noted that North Carolina courts had not extended that privilege to records but cited Peoples Temple of the Disciples of Christ, 515 F. Supp. 246 (DDC 1981), as an example of a court extending similar protection to congressional records. The privilege provided a plausible explanation for the statutory silence: maybe the legislature believed legislator-drawn plans were already privileged and did not need specific statutory protection.

Why the post-enactment question stayed ambiguous. G.S. § 120-133 expressly converts staff redistricting work to public records once a plan becomes law. The AG noted that the silence about legislator-drawn plans persisted into the post-enactment context, recreating the same canon-versus-canon problem.

The AG's recommendation. The opinion gave no definitive answer. It said the argument against reading silence to require disclosure seemed more compelling, especially in light of possible legislative privilege, but acknowledged that courts could reach the opposite conclusion. It recommended that the General Assembly resolve the ambiguity.

Common questions

Q: Did this opinion mean a legislator could refuse to produce a personally-drawn redistricting plan?

A: The AG gave no definitive yes or no. It said the rule against construing statutory silence to produce an illogical result seemed more compelling here, especially given possible legislative privilege. It also said a court could reach the contrary conclusion and recommended legislative clarification.

Q: Did courts ultimately resolve the question after this opinion?

A: The opinion does not address subsequent developments. Check current statutes and decisions before using its 2002 analysis for a present request.

Q: Why didn't the AG just pick one canon and apply it?

A: The AG said the rule against an illogical result seemed more compelling in this setting, especially because legislative privilege might protect legislators' records. It still could not give a definitive answer: North Carolina decisions had not resolved which rule controlled or whether the privilege extended to records.

Q: Did the opinion decide whether staff-prepared redistricting drafts become public after enactment?

A: It described G.S. § 120-133 as making drafting and information requests to legislative employees, and documents those employees prepare for legislators concerning redistricting, public once the relevant district plan becomes law. The unanswered question concerned plans legislators prepared themselves.

Citations

Statutes:

• N.C.G.S. § 120-9 (legislative powers)
• G.S. §§ 120-130 and 131 (legislative requests and staff-prepared documents)
• N.C.G.S. § 120-133 (redistricting communications become public on enactment)
• N.C.G.S. § 132-1 et seq. (Public Records Act)

Cases:

• News and Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992) (legislative silence on confidentiality treated as intent that record is public)
• Commissioner of Insurance v. Rate Office, 294 N.C. 60, 241 S.E.2d 324 (1978) (statutes not construed to produce absurd or bizarre results)
• Northfield Development Co. v. City of Burlington, 136 N.C. App. 272, 523 S.E.2d 743 (2000) (NC legislative testimonial privilege)
• United States v. Peoples Temple of the Disciples of Christ, 515 F. Supp. 246 (DDC 1981) (legislative immunity protecting records in congressional investigation)

Source

• Landing page: https://ncdoj.gov/opinions/public-access-to-legislator-drafts-of-redistricting-plans/

Original opinion text

REPLY TO: Edwin M. Speas, Jr.
(919) 716-6400 FAX: (919) 716-6750

February 5, 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 drafts of redistricting plans, N.C. GEN. STAT. § 120-130; N.C. GEN. STAT. § 132-1, et seq.; N.C. GEN. STAT. § 120-9

Dear Mr. Sullivan:

You have sought our advice about whether certain redistricting plans personally created by legislators and stored in the legislature's computer system are public records.

The statutes pertinent to this question are contained in Article 17 of Chapter 120 of the General Statutes, entitled "Confidentiality of Legislative Communication." G.S. §§ 120-130 and 131 generally provide that requests by legislators to legislative employees for information or to draft legislation, and documents prepared by legislative employees in response to those requests are not public records. G.S. §§ 120-133 deals specifically with communications about redistricting. It provides: "Notwithstanding any other provision of law, all drafting and information requests to legislative employees and documents prepared by legislative employees for legislators concerning redistricting the North Carolina General Assembly or the Congressional Districts are no longer confidential and become public records upon the act establishing the relevant district plan becoming law." Notably absent from these statutes is any reference to whether districting plans personally prepared by legislators are or are not public records. This silence prompted you to seek our advice about the following question:

Does a member of the public have a right to inspect and copy a redistricting plan when (a) the plan was prepared by a legislator using the legislature's computer system, (b) the plan was prepared by the legislator without staff assistance, and (c) the plan is still stored in the General Assembly's computer system.

The answer to your question depends on the legal effect of the legislature's silence regarding redistricting plans personally prepared by legislators without staff assistance. We will first examine your question assuming the request to examine the redistricting plan is made before a plan is in fact enacted, that is, before the provisions of G.S. § 120-133 come into play, and then examine your question assuming that the request is made after a plan is enacted.

The courts ordinarily deem any record not specifically made confidential by the General Assembly to be a public record. In other words, 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 subject to disclosure under the Public Records Act. See, e.g., News and Observer Publishing Co. v. Poole, 330 N.C. 465, 474, 412 S.E.2d 7, 13 (1992) ("The legislature knows how to extend the scope of protection of confidential records . . . . Where the legislature has not included such broad protection . . . we will not engraft it."). Application of this rule in this instance would result in the conclusion that the legislature's silence with regard to the status of plans prepared by legislators themselves equates to a legislative intention that such plans are public records.

Application of another rule of statutory construction, however, would result in the opposite conclusion. Because it is always presumed that "the legislature acted in accordance with reason and common sense," statutes may not be construed to produce "absurd or bizarre consequences." Commissioner of Insurance v. Rate Office, 294 N.C. 60, 68, 241 S.E.2d 324, 329 (1978). Construing the legislature's silence as equating to an intention to make plans drawn by legislators themselves public would produce an arguably bizarre or absurd result. A plan drawn by a legislator would be a public record; that same plan drawn by legislative staff members for that same legislator would not be a public record. In this regard, the legislature's silence about the confidentiality of plans drawn by legislators themselves may in fact simply reflect a belief that such plans were already confidential and thus needed no specific protection. North Carolina's courts have recognized that the concept of legislative immunity includes a "testimonial privilege" shielding legislators from being compelled to explain their reasons for their legislative actions. Northfield Development Co. v. City of Burlington, 136 N.C. App. 272, 282, 523 S.E.2d 743, 749 (2000). Although no court in North Carolina has ever addressed the application of this privilege to the disclosure of records, it is certainly possible that our courts might reach that result. Cf. United States v. Peoples Temple of the Disciples of Christ, 515 F. Supp. 246 (DDC 1981) (holding that legislative immunity forbids the compelled disclosure of unpublished information in a congressional investigation).

No decision by North Carolina's courts provides guidance as to which of these competing rules of construction should control here or as to whether the "testimonial privilege" applies to records. The case for application of the rule that legislative silence should not be construed to reach an illogical result would seem more compelling in this instance, especially in light of the possibility that legislative privilege principles may protect the records of legislators from disclosure in the absence of a statute making them public, but the courts could reach the contrary conclusion.

This same conundrum exists with respect to requests to inspect and copy plans made after the enactment of the pertinent plans. As earlier noted G.S. § 120-133 is silent with regard to plans drawn by legislators themselves. It specifically makes "all drafting and information requests to legislative employees and documents prepared by legislative employees concerning redistricting" public records after enactment of redistricting plans, but makes no mention of plans prepared by legislators themselves. Thus, the basic question again becomes the legal effect of the legislature's silence. Should that silence be construed as an intention to make those plans public records or should it be construed to reflect a belief that such plans are not public records in the first place? As in the previous instance, there are no court decisions providing definitive grounds for selecting between those competing rules of construction.

In sum, Article 17 of Chapter 120 of the General Statutes, particularly G.S. 120-130, 131 and 133 are ambiguous regarding whether redistricting plans prepared by legislators themselves are public records. The rules for resolving the meaning of ambiguous statutes, however, do not provide a clear means for resolving this ambiguity. This ambiguity could best be resolved by the General Assembly itself.

We trust that our views will be helpful to you and the General Assembly.

Very truly yours,

Edwin M. Speas, Jr.
Chief Deputy Attorney General

Daniel D. Addison
Assistant Attorney General