NC environmental commissioner says he doesn’t mean to dodge public records law

A state environmental board member said remarks he made during a public meeting Thursday were intended to clarify how the Environmental Management Commission responds to public records requests, not subvert the process.

Charlie Carter, an environmental attorney, is serving his third four-year term on the commission, which oversees N.C. Department of Environmental Quality regulations.

At the end of Thursday’s regular meeting of the commission, Carter said he was “uncomfortable” with a “so-called public records request” the commission received. He expressed specific reservations about fulfilling requests via the N.C. Department of Environmental Quality’s public information office and argued that the Environmental Management Commission is effectively a separate entity.

“I think we need to put something in place very quickly to get those (public records) procedures and get this and any other requests handled properly. If anybody is providing anything currently, that should go to our counsel and not to anybody at the department. I don’t think there’s any question about that. So I would respectfully request that we move quickly to put something in place as far as the bylaws,” Carter said during the meeting.

Carter’s remarks caused concern among some open government advocates who worried they could represent an attempt by the commission to avoid complying with the state’s public records law.

“There’s no doubt that these are bodies solely conducting state business and that whoever controls them, they’re subject to the Public Records Act,” Kym Meyer, the Southern Environmental Law Center’s litigation director, said in an interview. Meyer is also the immediate past president of the N.C. Open Government Coalition.

At issue is the response to a request from Lisa Sorg, an environmental journalist now working for Inside Climate News who asked for records pertaining to the rule-making effort around PFAS substances.

This week, two commission committees voted to delay decisions on groundwater and surface water standards for the chemicals until September. It was the second consecutive meeting at which DEQ staff have argued they are ready to move forward with the rules and the committees have voted to wait. Powerful business interests including the NC Chamber have urged the commission to delay action, citing new drinking water standards from the U.S. Environmental Protection Agency and potential costs of complying with the state’s rules.

‘Can’t overrule state law’

Right now, public records requests are sent to an attorney with the N.C. Department of Justice who gathers responses from the commissioners and, theoretically, then passes them along to DEQ for a return to the person making the request.

Carter told The News & Observer that his comments were not a suggestion that environmental commission members should try to get around the state law, but rather a call for a bylaw that would explain how requests could best be submitted to the commission and where members should send their responses.

“It’s not to block anything, it’s just to at least put something in place that sets out what the proper process is here. That’s all I’m really talking about,” Carter said.

JD Solomon, the commission’s chairman, created a “working group” consisting of himself, Carter and fellow commission member Michael Ellison to address the matter.

Those bylaws could work if they set out how the commission is going to comply with public records law. It could include elements like how long records should be retained, how members coordinate with attorneys to respond to requests and how members should keep public and private email accounts separate, Meyer suggested.

“You could certainly have bylaws which would keep you in compliance with the law, but committee bylaws can’t overrule state laws,” Meyer said.

What does the law say?

North Carolina’s public records law is clear that any document members of the Environmental Management Commission creates in the course of their work should be made public, with some specific exceptions such as confidential communications with the commission’s legal counsel.

“The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people,” says Chapter 132, section 1 of North Carolina’s General Statutes.

Public records laws apply to any public officer or official “state or local, elected or appointed” belonging to any unit of government, the statute says. That includes members of boards and commissions, but also institutions, bureaus, councils, authorities and departments.

The state law defines a public record as anything “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.”

The Environmental Management Commission is one of several state boards whose membership was overhauled last year to take majority control from Gov. Roy Cooper, a Democrat. Republican appointees now make up a majority of the commission, with Senate leader Phil Berger, House Speaker Tim Moore and Agricultural Commissioner Steve Troxler all appointing members. Carter was most recently appointed by Berger.

That’s led to some conflict with DEQ, an executive agency controlled by Cooper.

Proposed regulations for eight forever chemicals in groundwater and surface water have caused much of the friction. DEQ Secretary Elizabeth Biser has grown increasingly frustrated as the commission’s new leaders have held the proposals at the committee level for months, citing administrative reasons.

With that backdrop, Carter was irked by a memo from DEQ saying that responses to public records requests should be handled by the department’s public affairs office. Carter pointed to N.C. General Statute 143B-14, which says departments provide administrative services for the commissions assigned to them but the commissions retain control of their own “ powers, duties and functions .”

“They’re not us, and we’re not them for that kind of a purpose. Their public records process doesn’t include us,” Carter said, referring to DEQ.

Public or private email accounts?

Members of the Environmental Management Commission and some other commissions use private email accounts to conduct state business. Carter and several others have set up Gmail or similar accounts with “emc” or “denr” in their name to receive messages pertaining to the commission and create some divide between personal and public business.

That creates an obvious problem, Meyer said, with commissioners serving as the custodians of their own records sent to private emails.

“From just a pure logistical point, it would be much easier if they were provided with state emails,” Meyer said.

Carter agrees, and told The N&O he had a conversation Thursday with the N.C. Attorney General’s Office about setting up DEQ email addresses for the 15 commissioners..

Meyer, the Southern Environmental Law Center attorney, was quick to note that many lawmakers and public officials use multiple email addresses. Any state business conducted from any of those would be subject to a public records request, she said.

“The law is not: What did you send from your state email address?” Meyer said. “The law is: What did you send that was in pursuance of state business?”

NC Reality Check is an N&O series holding those in power accountable and shining a light on public issues that affect the Triangle or North Carolina. Have a suggestion for a future story? Email realitycheck@newsobserver.com

This story was produced with financial support from the Hartfield Foundation and Green South Foundation, in partnership with Journalism Funding Partners, as part of an independent journalism fellowship program. The N&O maintains full editorial control of the work. If you would like to help support local journalism, please consider signing up for a digital subscription, which you can do here .