Stark County afoul of ND sunshine laws, North Dakota AG office opinion finds
North Dakota Attorney General Wayne Stenehjem issued an opinion Wednesday that Stark County violated state open records law in delaying response to an open record request.
Stark County was found in violation of North Dakota’s Sunshine Law in failing to provide requested records within a reasonable time and failing to communicate an explanation for the delay in response to a request for public records in 2020, according to an opinion filed by the North Dakota Office of the Attorney General on Wednesday.
The complainant, Leslie Ross, alleged that the Stark County Board of Commissioners violated North Dakota Century Code by not providing requested records withing a reasonable time and improperly denied her request to obtain records related to finalist applications for a human resources position.
In North Dakota, the Open Records Statute is a series of laws designed to guarantee that the public has access to public records of governmental bodies. North Dakota law defines records as, “recorded information of any kind, regardless of the physical form or characteristic by which the information is stored, recorded, or reproduced, which is in the possession or custody of a public entity or its agent and which has been received or prepared for use in connection with public business or contains information relating to public business.”
Anyone can request public records and no statement of purpose is required. There are no restrictions placed on the use of records nor is a response time specified according to the open records statute NDCC 44-04-18.
Some restrictions apply, with records related to juveniles; trade secrets; public employee medical and assistance records; workers compensation; unemployment; tax information; law enforcement investigation records; and most Department of Human Services records being exempt.
According to the AG opinion, released Wednesday, Ross made a records request to Stark County for the records on Oct. 27, 2020, and after receiving no response to her request, sent a reminder on Nov. 9, 2020.
On Nov. 12, 2020, Stark County Assistant State's Attorney Jim Hope responded to Ross' request with a denial because, "he did not believe that three or more finalists for the position were designated, making the records confidential."
More than a month later, after further review, Hope determined that finalists were designated and ultimately provided the records to Ross on Dec. 30, 2020.
Ross alleged in a complaint to the AG's office that Stark County violated the open records laws by not responding to her request in a timely fashion, and further denied her entire record request without stating the statutory exemptions — misapplying North Dakota Century Code and denying her access to public records.
"When a public entity receives a request for records, it must, within a reasonable time, either provide the records or explain why the records are not being provided. A delay may be appropriate for a number of reasons, including the number of records requested, reviewing a large volume of documents to respond to a request, excising closed or confidential information, availability and workload of staff who can respond to the request, or balancing other responsibilities of the public entity that demand immediate attention...," Wayne Stenehjem, North Dakota Attorney General, said. "Here, the County replied that it had experienced staff turnover, illnesses and an election that contributed to the delay in responding to Ms. Ross' request. Part of the delay was due to a misapplication of North Dakota Century Code, which provides protection for records of applicants during the application process. The county admits it did not apply the statute correctly."
Stenehjem continued, "Ultimately, it took eleven business days to acknowledge Ms. Ross' request...It took over two months, until December 30, 2020, to start providing the records to Ms. Ross...It is my opinion that a delay of more than two months was unreasonable."
According to the AG opinion, the matter requires no further corrective measures to be taken by the county.
Stark County State's Attorney Amanda Engelstad responded to the opinion in a statement to The Dickinson Press, noting that there were three areas of concern named in the complaint, two of which the AG found no violation.
"The Stark County State’s Attorney’s Office, specifically, Mr. Hope, worked with the AGs office to ensure that we were in compliance with the open records laws. Mr. Hope made numerous phone calls and reached out to many people and spent many hours sorting through the messy interview process," Engelstad said. "Once he was satisfied he would not be releasing any confidential information, he provided all the requested information to Ms. Ross..."
While the opinion was released on Wednesday, Stark County had already complied with the request and provided all the records to Ross in 2020.
"I think that it is important to note the entirety of the AGs Opinion, not just the violation that occurred due to a very unique situation of which is incredibly unlikely to reoccur," Engelstad added. "The only violation that was found was a timeliness issue and in light of the unique situation that was occurring, I believe (it) was dealt with as timely as possible."
Ross, who disagreed with the opinion, believes that the request was intentionally withheld in light of, and to prevent public awareness in, a hiring process replete with "nepotism."
In a rebuttal to the findings, Ross noted her views on the handling of both the hiring process and the subsequent open record request.
"Mr. Hope provides a narrative that primarily provides participants’ recollections of
events instead of evidence of events. He blames this failure to comply on the political
climate, the County Commissioners infighting, employee harassment and sexual harassment complaints against Commissioners, my running for the Office of commissioner, the loss of Auditor, Kay Haag on October 15th and HR Coordinator, Linda Krebs in mid-September and the requester of the records instead of following the NDCC statutes," Ross said. "Mr. Hope fails to provide content and context in his assertions with direct documentary evidence in his narrative. He never quotes from emails and takes it upon himself to provide a false narrative of those emails by providing his personal opinions instead of factual documented evidence."
Ross added, "If he actually provided all the emails and what they stated exactly it would only provide the truth of all the conversations and context. Regardless of these purposeful omissions there can be but one conclusion. Stark County violated the open records statute and then tried to blame the requestor and circumstances of the timing of the request in order to justify their denial of records."