Boswell must turn over emails without redactions


Sunday, June 3, 2018

She may not know it yet, but state Rep. Beverly Boswell, R-Dare, is making a good case for why North Carolina laws that ensure the public's access to official records are so important and why they must continue to be valued and strengthened.

Currently, the House District 6 representative seems resigned to her grudging assault on transparency by resisting to hand over the complete correspondence she's conducted on her official legislative email account. That correspondence is the subject of a lawsuit filed in January by Kitty Hawk resident Craig Merrill and the American Civil Liberties Union, who want Boswell to turn over the complete emails.

Only after resisting a lawful public records request from Merrill last year did Boswell finally agree to a portion of the request. The emails include exchanges between her and constituents, and possibly other officials, with whom she's been communicating about official legislative business. In particular to Merrill's interest, the emails he wants to see are those related to the plastic bag ban for Dare, Hyde and Currituck counties, which Boswell successfully led efforts to repeal, despite local public support for the law.

But in the emails she finally did turn over, the names of those with whom she had corresponded were redacted.

In North Carolina, as in other states, courts have agreed that emails and other electronic correspondence used by elected or appointed government officials are, in effect, public, just as a letter or official statement would be. Apparently, the law hasn't prevented Boswell from trying her best to shield those whose influence may have affected her actions in repealing the bag ban.

That also appears to be a losing cause for her, and an opportunity for Merrill and the public at large.

The identity of those whose names appear in official emails cannot be legally kept secret. Furthermore, those individuals should have no expectation — they certainly have no legal standing — that their identities would not be revealed. By putting their requests, suggestions or advice on legislative matters into official correspondence, they have given up any right to remain anonymous.

State statutes providing access to public records — including official email correspondence — are often the only avenue the public has to hold elected officials accountable. Hence, based on her vigorous attempts to keep them secret, the emails are likely to reveal much about what and who motivated her actions.

Ordinarily, matters up for legislation would be discussed and debated openly and would pass or fail based on their merits — or on the ability of legislators to convince enough members to support them. Ordinarily. But it's now quite common to see locally-driven, and potentially controversial bills slipped quietly into larger legislative actions that are more likely to pass.

What is equally troubling to Boswell's resistance is the pervasive effort by powerful leaders to avoid the obligation of public transparency. In this case, House Speaker Tim Moore's chief of staff and general counsel has stepped in to defend Boswell, claiming the emails are not public, and not generated "pursuant to law or ordinance."

Yet, the fact that Boswell has an official email account to correspond with constituents or other officials about legislation leaves little doubt the emails must be pursuant to law or ordinance — unless she’s in Raleigh only to sight-see or to shop.

We expect the court to provide a quick and resounding order for Boswell to turn over the full emails. The sooner the better that the public gets a better idea of how this scurrilous legislative action was conceived, advised and guided — and by whom — through the legislative process.

Also to her likely dismay, because state public records law provides relief to those who must sue to obtain public records, a court order for Boswell to produce the emails can require her to pay Merrill's attorney fees — another valuable lesson for the public and for other officials who would thwart the public’s right to know.