Was NC lawmaker violating public records law? She turned over emails before a judge could rule

Three weeks after the ACLU and a Kitty Hawk resident asked a Wake County judge to order a North Carolina lawmaker to release correspondence to and from her office about a plastic bag ban, the Dare County Republican agreed to do so.

Craig Merrill and the American Civil Liberties Union of North Carolina sued state Rep. Beverly Boswell in January.

They accused Boswell of violating the state’s public records laws, after Merrill’s requests for information on who she had corresponded with about a plastic bag ban went unmet for more than nine months.

In April 2017, Merrill requested phone records and emails from Boswell’s office so he could get a better understanding of what was going on at the General Assembly and why his representative supported a repeal of a ban on plastic bags at Outer Banks stores.

On April 13, four months after the lawsuit was filed this year, Boswell turned over some records to Merrill but redacted the names and email addresses with whom she and her office were corresponding.

Merrill, an outspoken critic of the repeal, was curious about where Boswell was getting her information. He worried that the ban, which was put in place to help keep plastic bags off the beaches and out of the stomachs of fish, sea turtles and other marine life, was being misrepresented.

Merrill said Wednesday he was glad that Boswell had decided to turn over the records without the redactions.

"The public deserves to know how our representatives are conducting business on our behalf so that we can hold them accountable," Merrill said. "I am glad my representative has finally agreed to follow the law, but it never should have taken more than a year and a lawsuit for her to do the right thing and be open about her work with a constituent.”

The lawsuit could have tested the breadth of North Carolina’s public records law and whether lawmakers can shield from their constituents who they are communicating with and how they respond to them.

But since she turned over the records, that question will not be decided by a judge in this case.

Efforts to contact Boswell were not immediately successful.

Boswell narrowly lost a Republican primary election in May after falsely claiming to be a nurse.

Chris Brook, legal director of the ACLU of North Carolina, said on Wednesday that while a judge did not rule on the overarching transparency question, Boswell's turning over the records shows his organization and others were willing to call their "bluff."

“We are glad that Representative Boswell finally agreed to do the right thing and stop hiding who she was communicating with about the public’s business,” Brook said. “North Carolinians deserve transparency from their elected officials – and the law requires it.”

The lawsuit filed in January outlined the push and pull between the public’s right to know what is happening in their statehouses and lawmakers' contentions that the public does not need to know everything.

Boswell staffer Beth Strandberg first told Merrill in late April that “documents in the custody of a legislator are treated uniquely under the law."

Documents between legislators and legislative staff are not public record, she contended, adding that “legislative immunity” protects lawmakers' speech within the General Assembly.

Merrill responded that he was seeking correspondence between Boswell and constituents.

Then Bart Goodson, chief of staff and general counsel for House Speaker Tim Moore, a Cleveland County Republican, provided Merrill with a different reason his records request had been denied.

Goodson contended that “it is the long-held position of the General Assembly bipartisan central staff that constituent emails do not meet the definition of public record,” but offered no state law or court precedent to support that position.

This story was originally published June 13, 2018 at 3:40 PM with the headline "Was NC lawmaker violating public records law? She turned over emails before a judge could rule."