§ 132-1. "Public records" defined.
(a) "Public record" or "public records" shall mean all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions. Agency of North Carolina government or its subdivisions shall mean and include every public office, public officer or official (State or local, elected or appointed), institution, board, commission, bureau, council, department, authority or other unit of government of the State or of any county, unit, special district or other political subdivision of government.
(b) The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people. Therefore, it is the policy of this State that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law. As used herein, "minimal cost" shall mean the actual cost of reproducing the public record or public information. (1935, c. 265, s. 1; 1975, c. 787, s. 1; 1995, c. 388, s. 1.)
...In addition, the term “document[s]” is defined to include “all records, papers, letters, maps . . . or other documentary material regardless of physical form or characteristics.” N.C.G.S. § 120-129(1) (2011).
§ 120-133. Redistricting communications.
(a) 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.
Present and former legislative employees may be required to disclose information otherwise protected by G.S. 120-132 concerning redistricting the North Carolina General Assembly or the Congressional Districts upon the act establishing the relevant district plan becoming law.
What about a state senator's communications
with private citizens while redistricting a city
like Roy Carroll, Jim Melvin or Skip Alston?
(b) Nothing in this Chapter nor in Chapter 132 of the General Statutes shall be construed as a waiver of the common law attorney-client privilege nor of the common law work product doctrine with respect to legislators as defined in G.S. 120-129. (1983, c. 900, s. 1; 1995, c. 20, s. 13; 2013-410, s. 36.7.)
Section 120-133 of the North Carolina General Statutes does not waive the right of legislators to assert the attorney-client privilege or work-product doctrine in litigation concerning redistricting...
There is no pending litigation in Greensboro yet,
so all or most communications
between Trudy Wade, her staff and the public should be public record.
...During the legislative process leading up to and following enactment, the defendant members of the General Assembly, including Senate President Pro Tempore Philip Berger, House Speaker Thom Tillis, Senate Redistricting Chair Robert Rucho, and House Redistricting Chair David Lewis, received legal advice from lawyers employed by the Attorney General of North Carolina and two private law firms...
Did Trudy receive legal advice?
...on 8 and 17 November 2011, plaintiffs served requests for production of documents on defendants pursuant to Rule 34 of the North Carolina Rules of Civil Procedure. These requests sought production of a variety of communications concerning enactment of the redistricting plans.
...defendants served written responses to plaintiffs‟ discovery requests, in which they objected to the production of certain categories of documents based upon the attorney-client privilege, legislative privilege, or work-product doctrine.
In support of their motion, plaintiffs cited section 120-133 of the North Carolina General Statutes, which reads: "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."
What about redistricting plans for a city?
Operationally, Article 17 places a veil of confidentiality over several specific legislative communications: (1) drafting and information requests made to legislative employees by legislators, N.C.G.S. § 120-130 (2011); (2) documents produced by legislative employees upon the request of legislators, id. § 120-131 (2011)...
Not communications with the public though
who were actively lobbying for the legislation?
...Article 17 expressly states that these legislative communications are not public records pursuant to the Public Records Act.
...Section 120-133 provides a narrow exception to the protections generally established in Article 17 to help ensure the State‟s compliance with the requirements of the Voting Rights Act.
In effect, section 120-133 permits “all drafting and information requests to legislative employees and documents prepared by legislative employees for legislators concerning redistricting” to become “public records” for this limited purpose. N.C.G.S. § 120-133.
...Defendants seek to protect much of their legislative redistricting work from public scrutiny under the cloak of attorney-client privilege; however, the relevant statutory language could not be clearer in indicating that the privilege is inapplicable here, making waiver irrelevant. The pertinent language of the statute reads: “Notwithstanding any other provision of law, all drafting and information requests to legislative employees and documents prepared by legislative employees for legislators concerning redistricting . . . are no longer confidential and become public records upon the act establishing the relevant district plan becoming law.” N.C.G.S. § 120-133 (2011)
Looks like communications with the public
are public records in the present, before the law is enacted.
...The unequivocal statutory language here can be summed up quite simply: as of 7 November 2011, the dates that this redistricting plan finally became law, all prior “drafting and information requests” and “documents” concerning redistricting ceased to be confidential. Therefore, these requests and documents cannot be covered by the attorney-client privilege, which applies only to confidential communications. This case does not concern a broad waiver of various privileges—the nonconfidential communications in question are simply beyond the protection of the attorney-client privilege...
All confidential communications and documentation
will be public records after the law takes effect.
...the plain and unambiguous terms of the statute provide that all documents (including e-mails) concerning redistricting, even those between legislators and outside counsel, ceased to be confidential upon final enactment of the law on 7 November 2011. Because N.C.G.S. § 120-133 renders these communications “no longer confidential” upon enactment of the districts (and because this litigation commenced after enactment of the law), the attorney-client privilege cannot apply.
...As the Fourth Circuit has stated, only those materials prepared specifically “because of” litigation are protected, not those that are created “with the general possibility of litigation in mind.” Nat’l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992).
...“[m]aterials prepared in the ordinary course of business are not protected.” Willis, 291 N.C. at 35, 229 S.E.2d at 201 (citation omitted); See Nat’l Union Fire Ins., 967 F.2d at 984. Maps, tables, plans, and other materials and discussions related to the actual writing of the redistricting legislation are obviously prepared in the ordinary course of business of the legislature.'
...any documents that relate to the substance of the redistricting legislation (decisions on where to draw district lines, analysis of census data, etc.) should not be covered by work-product protection.
...Because the materials necessary to show whether the legislature violated the basic rules of redistricting as set forth by the U.S. Supreme Court may well lie among those documents now claimed as privileged, plaintiffs may have a reasonable claim to an exception to work-product protection.
I would hold that documents listed in N.C.G.S. § 120-133 are not subject to attorney-client privilege because, following enactment of the redistricting legislation on 7 November 2011, those documents are not confidential."