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 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 Mr. Terrence D. Sullivan February 5, 2002 Page 2

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 Mr. Terrence D. Sullivan February 5, 2002 Page 3

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

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