Commentary, Legislature, Special Session

Regulatory reform, part 2: Now the really bad news

A photo of two state lawmakers talking on the Senate floor.

The calm before the storm: The Senate Chamber on Tuesday. (Photo: Lisa Sorg)

You know it’s been a horrible day for democracy when the best thing we can say is, “Well, they didn’t kill renewable energy.”

The Regulatory Reform bill, which has a few positive aspects, nonetheless contains troubling stormwater provisions and a public records bombshell.

First, the bill would prohibit the NC Department of Environmental Quality from mandating stormwater control measures at say, a construction site, if they would protect water quality downstream, unless required under state or federal law. That effectively thwarts counties and cities from enacting stronger stormwater standards in these cases.

Secondly (this is in Section 3.15, for those of you playing along at home), development can occur within some areas area that otherwise would have to be in a vegetative buffer. This means that impervious surface — pavement, parking lots, sidewalks — can replace grass, meadowlands and trees, as long as the runoff is collected and treated and discharged through another buffer.

The net effect is more pavement, more runoff and fewer buffers that can alleviate flooding. (And flooding from Hurricane Matthew is primarily what brought the legislature back in session in the first place.)

And finally, some stormwater management systems can be fast-tracked through the permitting process without a technical review. Because what could go wrong?

Nothing to see here: Proposed changes to the public records law

Citizens and the media rely on public records to monitor the activities of state government. Expense reports, environmental violations, travel manifests, emails and correspondence: This is all ostensibly a public record except under limited circumstances, such as attorney-client privilege and open criminal investigations.

Most of the time, the records are provided for free, although state agencies have been known to charge fees for staff time and paper copies. However, these costs aren’t supposed to be onerous. (That said, on occasion some citizens groups and the media have been asked to pay thousands of dollars  — the very definition of onerous.)

Currently, people can ask for records in electronic form (CD, pdf, downloadable database) or in paper form. But under this bill the state agency could decide the format.

Here’s an example of how this could be a problem: A person in rural North Carolina, who has no broadband Internet access (or any Internet access), requests the state mail her a CD of water quality data. If this bill becomes law, the state could say, no, you have to download a database. Without an Internet connection, she couldn’t access the public records that she, as a taxpayer, actually owns.

Conversely, a state agency, irritated by a certain reporter or media outlet, could decide to provide the records in a 6 foot stack of paper. This is known as a data dump, and it’s a passive-aggressive way for government to meet its legal obligation while making the media’s life very difficult. It’s very inefficient to parse paper records and build an electronic database, which is how reporters had to work in the old days. Downloadable data has made watchdogging much easier. This bill would make it more difficult.

Either way, citizens own the records and should be able to choose which format they prefer.

The Sunshine Center at Elon University explains:

The bill would change how agencies are required to provide access to public records and electronic databases. Under existing law, an agency must permit inspection or provide a copy of a record or database upon request, unless it is otherwise exempt. The person making the request has the choice of format, as long as it is one in which the agency is capable of reproducing the record.

The bill would permit agencies to satisfy their obligation under the Public Records Law by making records and databases accessible online in a format that allows the record or database to be downloaded. The agency would not be required to provide the record or database in any other form or format. The agency could choose to provide the record or database in another format “as a service to the requestor” and would be permitted to “negotiate a reasonable charge for the service.”

The words “negotiate a reasonable charge for the service” should sound an alarm for open government advocates. “Reasonable” is not defined, leaving room for outlandish fees. And “negotiate”? Usually the person with the most power wins a negotiation. As we’ve seen in the last 24 hours, that’s not the citizens of North Carolina.

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