NC General Assembly leadership started automatically deleting legislators’ email. Is that legal under the Public Records Act?

This post is a guest contribution co-authored by Spencer Scheidt, Associate Attorney, and fellow attorneys at the Southern Environmental Law Center (SELC). The SELC is a nonpartisan, nonprofit environmental legal advocacy organization rooted in and focused on the South. Kym Meyer, Senior Attorney and Government Accountability Regional Leader, serves on the NC Open Government Coalition’s board of directors.

About eighteen months ago, North Carolina legislative leadership alerted legislators and staff about a new email-deletion policy: All legislators’ email will be automatically deleted three years after messages are received or sent, unless they are tagged for “personal retention” or saved to the server. Since the policy went into effect on July 1, 2021, nearly all legislative emails sent or received before the date of this post are gone forever.

Such a widespread and indiscriminate email-deletion policy may violate the North Carolina Public Records Act’s provisions on record retention. It also may undermine preservation of the historical record for the public and the evidentiary record in ongoing litigation. And to make matters worse, it may not even be necessary to any significant administrative interest of the General Assembly.

Legislative records are crucial to understanding the history and intent behind laws that affect North Carolina citizens. For example, our courts have used legislative correspondence to interpret our constitution and understand legislative intent in racial-discrimination lawsuits. Because legislation often takes years to develop, and litigation challenging that legislation can take even longer, it is essential that our legislature preserve its records—all of them, not just a cherry-picked set—for as long as practicable.

The North Carolina Public Records Act requires as much. Under the law, government records—including many legislative communications—“are the property of the people.” (NCGS 132-1). Custodians of public records may not “destroy, sell, loan, or otherwise dispose of any public record” unless certain exceptions apply.  (NCGS 132-3).

Improperly destroying records is a misdemeanor in North Carolina, and the Public Records Act does not permit custodians of records to make their own rules about the destruction of public records. Instead, custodians must work with the Department of Natural and Cultural Resources to establish a destruction “schedule.” (NCGS 121-5). Aside from a very few limited exceptions, records may only be lawfully destroyed pursuant to a Department-approved schedule.

These schedules apply based on a record’s function, rather than the entity that created it. For example, “internal and external communications (including e-mail) to and from elected officials” must be permanently preserved. (Agency Management schedule). The same goes for legislative committee “correspondence” and General Assembly “records with historical significance produced in the course of liaising with other government officials.” (Governance schedule). If records do not fall into these buckets, or other subcategories found in the functional schedules, they may not be destroyed “without explicit authorization” from the Department. (Functional Schedule overview).

There is no evidence that legislative leadership received input or approval from the Department to implement its policy and begin deleting any email more than three years old. This maneuver raises serious concerns about the preservation of records that are essential to the public and historical interest.

The policy also creates another serious legal problem by calling for records to be destroyed without the consent of the records’ custodian. Each individual legislator is “plainly” the custodian of their own records, including email and the emails of their staff. (NC Attorney General Opinion). And only the entity “having custody” of public records may dispose of them. (NCGS 121-5). Yet leadership’s policy wrests this authority away from individual legislators. In doing so, the policy also exposes individual legislators to liability under a state law that requires the custodian to deliver to their successor all records “kept or received by him in the transaction of his official business.” (NCGS 132-4).

On top of that, the policy may undermine the General Assembly’s common-law duty to preserve evidence in anticipation of litigation. In North Carolina, once a party is on notice that litigation is reasonably likely, they must preserve evidence that is “potentially relevant” to that litigation. (McClain v. Taco Bell Corp.). But to our knowledge, legislative leadership has never suspended its new email-deletion policy—despite involvement in courtroom battles that predate and span the life of the email-deletion policy. This policy, if followed without care or attention to the many legal requirements governing the preservation of records, threatens to destroy vital evidence relevant to cases of serious public import.

So why institute such a problematic policy at all? Legislative leaders have pointed to cost savings in the past—fewer emails stored on the server means lower overhead costs. However, this explanation does not hold water. A 1 terabyte hard drive, which costs approximately $100, can store over 100 million pages of email files. Cloud storage for the same amount of data costs about $50 per year.

North Carolina is currently running a $6.5 billion budget surplus, with around $2 billion of that expected to be recurring. The General Assembly recently decided to divert more than $4.1 billion into reserves. Given the legal risks of implementing a blanket email-deletion policy and the minimal costs of preservation, the General Assembly should opt to permanently preserve public records of the people’s business. 

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