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Bill-tracking service prompts quick action on measure for protection

BISMARCK -- A new bill-tracking service designed to make North Dakota's legislative process more transparent has prompted emergency action to shield users from public record requests aimed at finding out which bills users are tracking and what they're saying about them.

The measure was introduced last Friday through the normal process. But an open records request filed Monday by a conservative blogger spurred House Majority Leader Al Carlson to make a floor speech Wednesday urging members to approve the measure immediately.

"We want transparency. We want our people to be engaged and to follow bills," Carlson said. "I don't think our intention ever was to have somebody track the bills that you are tracking."

The new Legislative Bill Tracking System went live on Jan. 9, the day after the session started. It replaces a subscription-fee tracking service that was operated by North Dakota State University.

Users are able to create a list of bills to track. They also can write personal comments about the bills for their own reference.

After launching the system, the Legislative Council started receiving questions about the user comments, raising concerns someone could seek such information through an open records request, said John Bjornson, an attorney for the council.

"Pretty handy tool for a lobbyist to say, 'Hey, I want to get the lobbyist on the other side's tracking list and see what they're saying about the bills,'" he said. "So it became clear that we needed to take a look at whether that was a public record."

Bjornson said council staff believes the records are probably protected under an existing state law that exempts legislative records "of a purely personal or private nature."

"But we wanted to make it absolutely clear so that the public would be encouraged to use the system," he said.

Carlson, R-Fargo, and Senate Majority Leader Rich Wardner, R-Dickinson, introduced the bill, which was referred to the House Judiciary Committee on Friday.

Then, on Monday, blogger Rob Port emailed a request to the council seeking copies of all comments made on bills by users of the tracking service.

Carlson referred to Port's request in his floor speech Wednesday as he urged rapid passage of House Bill 1186. The bill amends the open records law to state, "Any record maintained within a legislative bill tracking system administered or operated by a public entity is an exempt record."

The bill passed the House 94-0 with an emergency clause, and the Senate passed it on Thursday. Carlson said he expected the bill to go to Gov. Jack Dalrymple today for his signature.

In a blog post Wednesday, Port wrote that he agrees with Carlson's legislation and that the comments by lobbyists and private citizens probably should be closed records.

But he questioned the bill being rushed through without a full debate, as did House Minority Leader Kenton Onstad, D-Parshall, who followed Carlson's floor speech by saying, "We are bypassing something that's been real integral to our process."

Carlson acknowledged Thursday that "normally we would never run a bill that fast," but he said swift action was needed to protect users' privacy.

The issue of Port's request still remains: If the council denies it and Port challenges it to the attorney general's office and wins, the council would have to comply unless the Legislature made the exemption retroactive through another amendment, Bjornson said.

"But I would hope that that wouldn't be necessary," he said.

Port said Thursday he will not make a decision about whether to challenge until the Legislative Council rejects the request and explains why, as required by state law.