Are a North Carolina legislator's emails and other written communications about redistricting public records the public can inspect, and who is the legal custodian of those records?

Plain-English summary

The Director of the General Assembly's Research Division asked the AG to clarify how the Public Records Act applies to a legislator's communications about redistricting. The 2001 cycle had produced controversy over what could be requested, by whom, and from whom. The companion opinion of February 5, 2002, addressed plans drawn by legislators themselves. This opinion sorted out the surrounding correspondence and the related custody question.

Chief Deputy AG Edwin Speas walked through the categories. For communications between a legislator and a legislative employee, including a staff member serving as legal counsel, the answer came directly from G.S. §§ 120-130, 131, and 133. Before enactment of a redistricting plan, those communications are confidential and not public records. Upon enactment, they become public records. The statute defines "legislative employee" to include counsel paid by State funds, so a legislator's communications with a staff lawyer get the same treatment as those with any other legislative employee.

For communications between a legislator and a member of the public, the statute is silent. Under the rule from News and Observer v. Poole, legislative silence on the confidentiality of a record means the record is public. The AG identified no countervailing canon to take public communications outside that ordinary rule. So a legislator's correspondence with a constituent, lobbyist, expert, or stranger about redistricting is a public record both before and after enactment.

For communications solely between legislators, the silence in the statute produced a more uncertain result. Reading silence as making such communications public would create an "incongruous, if not illogical" outcome: a legislator's email to a staff drafter is confidential, but the same email forwarded to another legislator is not. The AG suggested that the General Assembly itself should resolve the question, possibly with reference to legislative-immunity testimonial privilege principles, and declined to give a definitive answer.

On the custody question, the AG concluded that each legislator is the custodian of his or her own email. The Public Records Act assigns the custody role to "the public official in charge of an office having public records." A legislator is plainly the public official in charge of his or her office, and the office holds email both on the legislator's local computer and in the central legislative computer system. The opinion noted that the Legislative Services Commission was working on a policy formalizing the same conclusion.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The intersection of legislative-immunity doctrine with the Public Records Act has been litigated in North Carolina and other states since 2002, and several rounds of redistricting litigation have produced new precedent. Anyone today demanding or producing legislator redistricting records should consult current statutes, current case law, and any updated Legislative Services Commission policies before relying on the conclusions here.

Background and statutory framework

Article 17 of Chapter 120. The legislative-confidentiality framework lives in G.S. §§ 120-129 through 133. Section 130 makes a legislator's requests to legislative employees for information or drafting confidential. Section 131 protects documents prepared by employees in response. Section 133, the redistricting-specific provision, says those records "are no longer confidential and become public records upon the act establishing the relevant district plan becoming law." The framework reflects a legislative judgment that pre-enactment work needs space to evolve, while post-enactment work belongs to the public.

Why "legislative employee" includes staff lawyers. G.S. § 120-129(2) defines the term to include "counsel to members and committees of either house of the General Assembly or of legislative commissions, who are paid by State funds." That definition controls. The AG's choice not to treat staff lawyers as covered by an additional attorney-client privilege flowed from the General Assembly's explicit decision to put staff counsel on the same footing as other legislative employees.

The Poole canon. News and Observer v. Poole, 330 N.C. 465 (1992), held that when the legislature is silent on whether a particular record is confidential, the default is that the record is public. The Court wrote: "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." The 2002 opinion applied Poole to communications between a legislator and a member of the public.

Why legislator-to-legislator communications are different. The same Poole logic would produce an absurd result here. The General Assembly clearly intended to protect a legislator's confidential work product before enactment, including communications with the staff who help build that work product. Treating identical content as public the moment it gets forwarded to a colleague would defeat that protection. The AG noted that the General Assembly may have left those communications out of the statute because legislators believed legislative-privilege principles already covered them, but the question was open and the legislature should resolve it.

Who is the "custodian." G.S. § 132-2 says "the public official in charge of an office having public records shall be the custodian thereof." A legislator is a separately elected member of the House or Senate, in charge of his or her own office. Email in that office, whether sitting on the legislator's hard drive or backed up to a central server, is in the legislator's custody for purposes of inspection and copying under G.S. § 132-6.

Deleted email. The opinion specifically addressed deleted email. If a legislator deleted email from his or her computer but the message remained somewhere on the legislature's central system, the legislator was still the custodian. The legislator's deletion did not transfer the custody role to the IT department or the Legislative Services Commission.

Common questions

Q: Did this opinion give the public a right to see all of a legislator's mail and email?

A: Only the parts that fell within the categories the AG identified. Communications with the public, before or after enactment, were public records. Communications with staff became public on enactment. Communications solely between legislators remained legally uncertain. And other (non-redistricting) communications were governed by separate analyses not addressed here.

Q: Could a legislator refuse to produce constituent emails by labeling them "legislative work"?

A: Based on this opinion, no. The AG read the silence in the statute as treating legislator-constituent communications about redistricting as public records. A label asserted by the legislator did not change the underlying statutory analysis.

Q: Did the AG's silence on legislator-to-legislator communications mean those records had to be produced?

A: The opinion declined to answer definitively. A legislator confronted with a request for legislator-to-legislator emails could plausibly resist on legislative-privilege grounds, but the courts had not resolved the question, and the AG recommended the General Assembly clarify by statute.

Q: What about communications about non-redistricting topics?

A: This opinion addressed redistricting specifically, because G.S. § 120-133 is the redistricting-specific public-records carve-in. Other legislative topics get the general treatment of G.S. §§ 120-130 and 131, with no automatic transition to public-record status upon some triggering event.

Citations

Statutes:
- N.C.G.S. § 120-129 (definitions, including "legislative employee")
- N.C.G.S. § 120-130 (confidentiality of drafting and information requests)
- N.C.G.S. § 120-131 (documents prepared by legislative employees)
- N.C.G.S. § 120-133 (redistricting communications become public on enactment)
- N.C.G.S. § 132-1 et seq. (Public Records Act)
- N.C.G.S. § 132-2 (custodian of public records)
- N.C.G.S. § 132-6 (inspection of public records)

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)

Source

• Landing page: https://ncdoj.gov/opinions/public-access-to-legislators-redistricting-communications-custodians-of-record/

Original opinion text

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. §§ 120-130, 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 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 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