BISMARCK — North Dakota is poised to further shield access to state lawmaker communications next month, which an open records advocate worried will conceal the public’s view of their representatives’ decision-making process.
State law already exempts lawmakers' messages with "any person" from the state's open records requirements, but a bipartisan bill passed during this year's legislative session goes further by applying that exemption to records possessed by a legislator and "any other public officer or employee."
That means state agency leaders wouldn't be required to disclose their communications with lawmakers even if an open records request is submitted to their department. The records won't be confidential, however, leaving it up to their discretion whether to release them.
The law is slated to go into effect Aug. 1, but a citizen group is gathering signatures to ask voters to block it. The group has until the end of the day Tuesday, July 23, to submit 13,452 signatures to state election officials to place the question on the ballot.
West Fargo Republican Sen. Judy Lee, the bill’s primary sponsor, said it was meant to protect the privacy of North Dakota residents who contact their legislators about sensitive personal problems that require communication with state agencies.
"It’s intended to protect the citizens' privacy, not mine," said Lee, who chairs the Senate Human Services Committee. "We need to be just a little more sensitive to the needs of folks who come forward because they’ve had some terrible thing happen."
But the new exemptions would extend beyond constituent-related messages, since they broadly cover records held by any public official. That would include emails between Fargo's mayor and several state lawmakers showing discussions about the massive, publicly funded flood diversion project that were obtained by Forum News Service earlier this year through a records request to the mayor's office.
State legislators who write the state's open records laws generally enjoy greater privacy than other state officials, such as the governor. Lee argued that's because the North Dakota lawmakers only work part-time without their own staff.
"We deal much more often with constituents directly," she said. "If somebody calls the governor's office, it would be a bloody miracle if they got to talk to any governor directly."
Adam Marshall, a staff attorney for the Washington, D.C.-based nonprofit Reporters Committee for Freedom of the Press, said it's "not the norm that individual legislators are themselves subject to the public records law." But he said North Dakota's new restrictions are "abnormal."
"In the state context, I have not seen that before," Marshall said.
The North Dakota Newspaper Association didn't oppose Lee's bill but unsuccessfully sought to limit its scope.
"We kind of looked at it as an inevitability, that it's the Legislature passing a bill that deals with legislative records, so our approach was to try and make it as palatable as we could," NDNA Executive Director Steve Andrist said. "Our philosophy is that it's as important to know how you get to an outcome as it is to know what the outcome is."
The bill came one legislative session after lawmakers shielded records identifying an applicant for government jobs until three or more finalists are named. Andrist worried that lawmakers were chipping away at the state's sunshine laws.
"And pretty soon, the little chips add up to a crack that goes all the way across the windshield," he said.