The NC Public Records Challenge Fund
I live in North Carolina and recently discovered that my publicly elected House Representative, Donny Lambeth, has been forwarding emails I had sent to him in his official capacity on to a hospital that is currently under investigation by the US Department of Labor as well as to a private company on whose board Lambeth once served.
In his email to this private company he wrote:
"Here is this weeks [sic] email from JV. Pass along to your attorney until I get him set up."
The Charlotte Observer contacted him for an explanation on the matter:
Lambeth, who co-chairs the House health committee, told the Observer that he couldn’t recall why he forwarded Vincoli’s emails to officials at CHS and MedCost.
“I don’t know what the intent was,” Lambeth said. “I don’t think it was a harmful intent, none whatsoever.”
Lambeth said he’s not aware of any ethical rules that would have prohibited him from forwarding the emails. He said he routinely sends the emails he receives to agencies “to make them aware of certain situations.” [emphasis added]
“All our emails are public information,” Lambeth said. “I certainly didn’t intend to betray (Vincoli’s) trust. He’s been a good friend for many, many years.” [emphasis added]
Read more here: http://www.charlotteobserver.com/news/politics-government/article22552143.html#storylink=cpy
Yet, when I submitted a public records request to Representative Lambeth asking for a copy of any email of mine that he had forwarded to anyone, he wrote:
Dear Mr. Vincoli:
I have consulted with the General Assembly staff and believe that my constituent correspondence is not a matter of public record as it is not made pursuant to law or ordinance as defined in the Public Records Act.
Donny C. Lambeth
So, setting aside the issue that the hospital and the private company Representative Lambeth forwarded my emails to are not 'agencies' of the state, it is clear that Representative Lambeth initially thought that 'all' of his emails were public record.
Yet, when I asked for copies of those emails it appears that they are not.
He holds that my emails to him (as a constituent) are 'public records' and can be forwarded to 'agencies' (including private, for-profit companies); yet, as a constituent, I cannot have access to any of my emails that he forwarded to his other 'constituents'.
As he states: '...constituent correspondence is not a matter of public record...'
On July 26, 2015, the Charlotte Observer Editorial Editor, Taylor Batten, weighed in on the matter stating:
JULY 26, 2015
‘Openness for thee, not me’
BY TAYLOR BATTEN
Editorial Page Editor
Want to read Charlotte Mayor Dan Clodfelter’s emails? Go ahead. City Manager Ron Carlee’s? County Commissioners Chairman Trevor Fuller’s? Just ask.
Under N.C. law, most of those emails are public records, as long as they pertain to public business. It’s common sense: If publicly elected, publicly paid officials are doing the public’s business, their work – done largely through email these days – is public record, with a few exceptions.
But Sen. Bob Rucho’s? Sen. Phil Berger’s? House Speaker Tim Moore’s? They can tell you to get lost. The law doesn’t apply to them, legislative lawyers say.
The question arose last week in a dispute between Rep. Donny Lambeth, a Forsyth County Republican, and a whistleblower named Joe Vincoli. Lambeth said he had assumed emails from constituents were public records, but after talking with legislative staff, now believes they are not.
Walker Reagan, the head of the legislature’s research division and a former legislative counsel for the General Assembly, argues that legislators’ emails to and from constituents are not public records. Given that local officials’ emails are public, Reagan’s approach is one, as First Amendment lawyer Hugh Stevens once said, of “openness for thee but not for me.”
Reagan employs at least three rationales:
State law says records are public if they are “made or received pursuant to law or ordinance in connection with the transaction of public business.” Constituent emails may be connected to the transaction of public business, but constituents are not required by law or ordinance to send them, and legislators are not required by law to receive them.
If a legislator shuffles constituent emails off to staff, they are then protected under a provision in state law that says documents between a legislator and staff are confidential.
Legislators are protected by legislative immunity in any case.
The N.C. Supreme Court, the N.C. attorney general’s office and other experts see things differently.
In a 1981 case between the (Raleigh) News & Observer and the Wake County Hospital System, the court ruled that the “made or received pursuant to law or ordinance” includes “in addition to those records required by law, those records that are kept in carrying out lawful duties.”
In 2002, legislative research director Terry Sullivan asked the attorney general’s office for an opinion on whether legislators’ emails pertaining to redistricting were public record, including emails from constituents. Then-Chief Deputy Attorney General Eddie Speas noted that state law doesn’t directly address the question of constituent emails. The courts, Speas said, usually take that silence as a sign that the legislature meant for the record to be public. So, he said, it was the attorney general’s opinion that constituent emails about redistricting are generally public. There’s nothing about redistricting that would give it different status than emails on other topics.
Stevens and other experts I talked with dismissed the notion that legislators could evade public records law simply by passing constituent emails on to staff. That would be like local officials making everything private by having the city or county lawyer read it and then arguing it’s protected under attorney-client privilege. They also argue that legislative immunity does not give legislators a blanket exemption to public records laws. If it did, legislators wouldn’t have needed to write into law some of the specific exemptions that they have.
Courts need a case
So opinions differ, and the question has never been settled by North Carolina’s appellate courts. A court challenge would be helpful in establishing an answer.
If the court ruled in favor of transparency, legislators would then have to decide: Do we want to weather the political fallout of explicitly saying that we don’t have to follow the laws that other public officials do?
I think Mr. Batten is right and that the Courts need to hear this case.
To do that, though, I need your help.
I am interested in finding a lawyer who will take this case on a pro bono basis.
Short of that, I will need to generate funding to pay the legal costs of the challenge.
(Prior to posting this I contacted Representative Lambeth to see if he would reconsider his decision not to release these documents and he has not responded).
If you are a lawyer with an interest in 'public records' access, please contact me at firstname.lastname@example.org.
If you are a citizen and believe that the work of our elected officials should be open to public inspection, please consider donating to:
The NC Public Records Challenge Fund
220 Epping Road
Clemmons, NC 27012
Paypal at email@example.com
This is a legal defense fund and it is not to be considered 'tax deductible' or charitable in any way.