Boswell records lawsuit continues
By Jon Hawley
Thursday, May 24, 2018
A Kitty Hawk resident and the American Civil Liberties Union continued their lawsuit against state Rep. Beverly Boswell, R-Dare, on Wednesday, objecting to her office providing redacted records that don't show whom she corresponded with last year about public issues, including repeal of the Outer Banks' plastic bag ban.
In a court filing Wednesday in Wake County Superior Court, Craig Merrill and the ACLU of North Carolina asked a judge to grant summary judgment to compel Boswell to provide official emails without redactions. Their filing explains Boswell's office provided emails in an attempt to respond to Merrill's records request last year, but blocked out people's names.
“After litigation commenced, the defendant (Boswell) then produced the requested records but has sought to categorically obscure who she and her office were corresponding with on matters of public import,” Wednesday's filing states. “The defendant's longstanding and ongoing intransigence has no basis in law and is an affront to North Carolina's system of representative democracy.”
Boswell's office did not respond to a request for comment on the lawsuit on Wednesday.
The dispute between Merrill and Boswell started in April 2017, when Merrill requested her official correspondence with residents and businesses of House District 6, which Boswell represents. Merrill said he wanted to learn about activity in the General Assembly, primarily last year's repeal of the Outer Banks' ban on plastic bags.
Boswell pushed to lift the ban, arguing it imposed high costs on businesses. However, other local officials defended the ban, saying it ensures the tourist-dependent Outer Banks continues to have healthy, attractive beaches.
Boswell's office initially opposed providing Merrill any of the records he sought, arguing they were not public records. House Speaker Tim Moore's chief of staff and general counsel later got involved in the matter, arguing the records Merrill sought weren't public, in part because correspondence with constituents was not generated “pursuant to law or ordinance,” as stated in the state's public records law.
Merrill and the ACLU rejected those arguments, countering that courts have interpreted the state's public records law as providing broad access to government records — including correspondence with constituents — subject only to specific exceptions.
According to Wednesday's filing, Merrill and Boswell attempted to mediate their dispute this spring, and Merrill limited the scope of his request to make it more manageable. He asked for records with certain keywords or involving certain entities from calendar year 2017.
In an interview Wednesday, Chris Brook, of the ACLU of NC Legal Foundation, said he couldn't say why Boswell is withholding the identities of people she corresponded with. However, he stressed she has no legal basis to do so.
“There's no statutory exemption that allows a public official to hide who she's talking to on matters of public import,” Brook said.
Government transparency requires knowing not only what public officials are talking about, but who they're talking to, he said.
Brook also said that, for a court to allow Boswell to leave the records redacted would invite “disaster” and “gamesmanship” as other lawmakers would seek to hide to whom they're speaking.
In continuing to press Boswell for clear records, Merrill explained he's not only trying to learn about specific issues, but wants to maintain standards of transparency with elected officials.
“It's bigger than our request here,” he said.
Boswell will be leaving office in December. She lost her bid for re-election in the May Republican primary to Bobby Hanig.