Open records task force mulls new rules

BISMARCK--A task force on open records laws considered Wednesday whether the state attorney general should be able to penalize government agencies that hold illegal private meetings or don't share records.

BISMARCK-A task force on open records laws considered Wednesday whether the state attorney general should be able to penalize government agencies that hold illegal private meetings or don't share records.

The issue was one of more than a dozen discussed by the group of lawyers, newspaper editors and law enforcement, which is writing draft legislation to modify the state's open records and open meetings laws in the upcoming legislative session.

The group is aiming to write an omnibus bill, including changes meant to update those laws for the digital age and broaden exemptions from disclosure for some. The group is also considering smaller bills covering especially controversial changes, such as whether correspondence between legislators and applicants for major posts at public universities should be open records.

North Dakota Attorney General Wayne Stenehjem said lack of enforcement power is a common complaint. All he can do is give a slap on the wrist, people say.

Some smaller agencies break the rules repeatedly with little punishment, said attorney Jack McDonald, who also represents The Bismarck Tribune.


But Stenehjem argued that formally issued opinions from his office are usually enough, saying he has never seen an agency refuse to comply with one. He issues increasingly stern warnings to repeat violators, he said, and once ordered an agency to undergo training on open records laws.

It would raise concerns about due process if the attorney general could fine an agency,Stenehjem said. However, he asked an assistant attorney general to vet a formal hearing process in Iowa, which has broader punitive authority.

The group also discussed protections for victims and witnesses of crimes and referred them for future debate.

One proposal would exempt the addresses of crime victims and witnesses from public record. Corrections officials have complained that offenders and their families try to get access to these records, creating a risk that victims and witnesses would be targeted, Assistant Attorney General Sandra DePountis said.

Fargo Forum editor Matt von Pinnon pushed back against that suggestion. He argued the addresses are important information for the press to help determine who's who when writing about a case.

Exempting interviews and statements from child witnesses was also proposed. Currently, only biographical information can be withheld once an investigation is complete.

Assistant Attorney General Mary Kae Kelsch argued the statements could accidentally identify young victims, especially in small towns.

But McDonald argued the provision would exclude statements that could be relevant later, such as a history of sexual assault accusations or crimes to which children are primary witnesses, such as a school bus crash.


On two hotly contested issues, the committee decided to consider drafting independent bills.

One of those would address whether applications for executive positions in universities and certain government agencies should remain open record.

Dave Maring, a trustee of the North Dakota State University Foundation, said having applications for the top jobs be public discourages the best people from applying. Current university presidents are afraid to apply for comparable jobs in North Dakota because it could jeopardize their current jobs and be embarrassing, he said.

McDonald argued these were public jobs, paid for by public funds, and cautioned that such a rule would close hundreds of records.

"If you don't want your name to be known, you shouldn't apply for the job," he said.

The second bill would make some correspondence between legislators public record.

Stenehjem said legislative correspondence is usually exempt to protect constituents who want to share information with their lawmakers.

"People are perplexed that they're not subject to the same laws as other public employees," von Pinnon said.

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