NC Legislative Building

Senate Bill 168, which passed the N.C. House and Senate nearly unanimously after midnight in the final hours of the short session, continues to generate controversy.

RALEIGH — Days after the North Carolina legislature’s passage of a bill that includes a measure to further restrict records about death investigations, some lawmakers say they are having second thoughts.

Senate Bill 168, which passed the House and Senate nearly unanimously after midnight in the final hours of the short session, continues to generate controversy. At issue is language in the bill requested by the N.C. Department of Health and Human Services that some fear would shield sensitive investigations from public scrutiny.

Currently, when investigative records leave law enforcement and are forwarded to the state medical examiner they become public.

Senate Bill 168 would change that by mandating those records still remain confidential.

That concerns advocates for open records and racial justice. They say the legislation could make investigations into unnatural or unexpected deaths, like those occurring in police custody or at a jail, less transparent.

With concern rising, House Majority Leader John Bell said a fix is in the works.

“The General Assembly acted in good faith to fulfill (the DHHS) request, and that’s why it was included in the bill,” said Bell, a Republican from Wayne County. “After further conversations and discussions about its unintended consequences, I am confident this will be revisited and corrected once the legislature reconvenes.”

Democratic Gov. Roy Cooper’s press office said Monday the governor would “review the legislation,” but did not say whether he would sign the bill.

Cooper has remained silent even as opposition to the provision grows.

Late Monday, the rapper Ice Cube tweeted that Cooper should veto the bill. And protesters staged an overnight demonstration outside of the governor’s mansion Monday night that stretched into Tuesday morning calling for Cooper to veto Senate Bill 168.

State officials and lawmakers said the provision was intended to shield death investigations by law enforcement from inadvertently becoming public record.

“This isn’t anything new,” said Michelle Aurelius, North Carolina’s chief medical examiner. “The protection isn’t different, isn’t changed, but it’s a fail-safe protection that reassures our partners that once they provide us with information and records that they continue to be protected when they’re in our custody.”

In the days since its passage, even before the protests and national attention, lawmakers and public records advocates expressed concerns about the legislation’s potential unintended consequences.

State Rep. Allison Dahle, a Democrat from Raleigh, was the only lawmaker to vote against the bill.

“The reason I voted no was it was one bill when it left the House, and when it came back it was totally different,” Dahle said. “Midnight is no time to govern. I continue to ask why it has to happen this way.”

Two days before its passage, when the bill left committee, it was six pages.

By the time it reached the floor in the early hours of Saturday morning, the page count more than doubled.

Two Democratic lawmakers who voted for the bill, Rep. Deb Butler and Sen. Jeff Jackson, have since expressed opposition to the secrecy provision.

“Good governance is impossible at 3 a.m.,” said Butler, who represents portions of New Hanover and Brunswick counties. “The speaker knows that and does it intentionally. New provisions back and forth all night long. It’s a terrible way to do the people’s business. If this language slipped under the radar, I hope the governor vetoes it. We need more transparency, not less.”

State officials say lawmakers, who originally included the provision in a 2019 bill, did not mean to change access to public records, but to clarify existing language. The 2019 bill stalled in the Senate, and legislators moved the language to House Bill 1214 this year, which also stalled. They then moved the provision to SB 168.

“My understanding is it just streamlines what is confidential,” said state Rep. Josh Dobson, a Republican from McDowell County, who introduced the bill on the House floor last Thursday night. “It doesn’t change the status of confidentiality.”

Some public-records advocates disagree.

“It may not have been anticipated by some, but SB 168 appears to invite less transparency into death investigations by Medical Examiners instead of more,” said Mike Tadych, a Raleigh attorney who frequently represents news organizations on public records issues. “It’s clear that our society is demanding greater access to information about deaths occurring while people are in police custody. Thus, it’s hard to reconcile making this change now.”

This story was jointly reported and edited by Kate Martin and Frank Taylor, of Carolina Public Press; Lucille Sherman and Thad Ogburn, of The News & Observer; Nick Ochsner, of WBTV; Emily Featherston, of WECT; and Tyler Dukes, of WRAL.

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