North Dakota Needs An Office Of Transparency

open_records2

From one perspective, North Dakota’s open records laws couldn’t be much better. They are broadly written, and apply to almost everything. The public’s right to know is firmly embedded in our state’s laws.

But from another perspective, our open records laws aren’t good enough. There are a myriad of ways to sandbag good-faith requests, and some of our public servants are skilled at doing just that.

A university system insider told me recently that NDSU President Dean Bresciani said the “best way to make Rob Port go away” is to charge exorbitant copying/retrieval fees for the records I request. I can’t independently verify the anecdote, but I suspect it’s true and it didn’t surprise me when I heard of it. Bresciani’s office, after all, tried to charge me $2,000 for access to records not so long ago (I had to go to the AG’s office to get what I needed, ultimately at no cost).

Agree with me or not, open records are open records. It doesn’t matter what the motivation for accessing those records is. It doesn’t matter if the public servant in charge of them wants them released or not. What matters is that they are open to public scrutiny under the law, and ought to be turned over to the public promptly when requested.

That’s not what happens. Often records requests take weeks to fulfill. The officials who keep them can be difficult to work with when they know you’re out to be critical. And if you feel the law has been violated, your only recourse is to ask the Attorney General for an opinion that takes as long as six months to complete.

Is an open record really an open record if it takes weeks, sometimes months, to access and only after much wrangling over the law with those keeping it? I don’t think so.

The Bismarck Tribune feels the same way. “[T]here are no teeth in the law,” they write in an editorial today. “No punishment or consequences beyond sitting through a workshop or class on open meetings and open records.”

There is a criminal statute for destroying or otherwise hindering access to public records. It’s a Class A Misdemeanor, or a Class C felony if you’re the public servant who has custody of the record. But it would be interesting to know the last time that was ever enforced. I suspect that the number of prosecutions under that statute in the State of North Dakota are exactly zero, or near to it.

What the open records process in North Dakota needs is an objective third party to mediate the requests. The imbroglio between Legislative Council and the North Dakota University System is a scandal born of a fundamental mistrust in those keeping the records. Many simply don’t trust that the university folks will make good on open records request, and that mistrust is backed up by the university system’s atrocious track record when it comes to open records and open meetings.

So let me resurrect an idea I’ve proposed before: An Office of Transparency for the State of North Dakota.

We could quibble over the specifics, but here are the broad strokes from a newspaper column I wrote back in November:

A citizen (journalist or otherwise) would contact the Office of Transparency via phone or email or perhaps even via an online form submission with their records request. Their request would be assigned a tracking number, which could be accessed online, as well as a representative to facilitate its fulfillment. If needed the representative would help the requester narrow their search down, and then act as the requester’s advocate in obtaining the records.

Once obtained the records would be conveyed to the requestor and the appropriate fees applied.

You could give this office teeth by empowering it to refer problems obtaining records to the Attorney General’s office (though citizens should retain their right to request an open records/meeting opinion).

An office like this solves a number of problems. First, it gives the public and the media an easy point of access for the often daunting task of figuring out what records they need and who to get them from. Second, it provides a third party empowered as an advocate for the requester to verify that exorbitant fees or other dodges aren’t being deployed to block access to records.

This is something the State of North Dakota needs. By and large, most state agencies are very responsive to open records laws. That’s been my experience, anyway, but a few bad actors have shown just how easily the public’s trust can be squandered.

Rob Port is the editor of SayAnythingBlog.com. In 2011 he was a finalist for the Watch Dog of the Year from the Sam Adams Alliance and winner of the Americans For Prosperity Award for Online Excellence. In 2013 the Washington Post named SAB one of the nation's top state-based political blogs, and named Rob one of the state's best political reporters. He writes a weekly column for several North Dakota newspapers, and also serves as a policy fellow for the North Dakota Policy Council.

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  • devilschild

    So you’re advocating for bigger government now? By creating new positions instead of enforcing laws that are currently on the books? I can see it now ….

    The North Dakota Office of Transparency

    601 East Rob Port Boulevard

    Bismarck, ND 58505

    • RCND

      It could actually be part of the Auditors Office. But this is one area where a few more state employees would be a good thing. The positions could even be reallocated from existing agencies with plenty of fat to trim

    • http://sayanythingblog.com Rob

      This is one area where adding a few people isn’t a bad idea.

      Transparency is an inherently conservative issue.

      • ellinas1

        Rob Port: “Transparency is an inherently conservative issue.”

        Rob Port: “A university system insider told me recently that NDSU President Dean
        Bresciani said………………… I request.”

        Mr Port talks the talk, but does not practice that which he expects from others.
        He deals with legislators who are cowards and make cowardly anonymous accusations, and he deals with anonymous university system insiders, posting info with a disclaimer.
        Be transparent Mr. Port. Tell us, the names of the cowardly legislator and the cowardly anonymous university insider.

        So, to the notion of transparency being an inherently conservative issue, is a smokescreen being used to achieve political ends.

  • rusty9

    I tried to get various legislators to put some teeth into the Open Records/Open Meetings law last session…but not one would bite.

    • borborygmi45

      considering it is there open meeting records ;you want most likely to disparage them some way…yah I could see why they are a little gunshy. Not saying it is right but I could see the reasoning

      • http://sayanythingblog.com Rob

        Uh, what?

  • Wasted

    Rob Port: wasting ND tax dollars and creating inefficiencies with wild goose chases since 2003.

    • http://sayanythingblog.com Rob

      Right. Things are so much more efficient if we keep the public in the dark.

      The thing about open records is that we don’t know what we are chasing until we see the records.

      Sorry, but government needs to live in a glass house.

    • Say It

      Several years ago, I requested (by phone), a paper copy of the township zoning regulations, where I own land. The township clerk never sent them to me.
      What if I wanted to build a building? How could I proceed to build a building, if I could not obtain a paper copy of the zoning regulations?
      When government officials do not produce public records, it can hold up legal proceedings, building projects and the like. These delays can cost you a substancial amount of money in legal fees and the like. Obtaining public records, in a timely matter, is important.

  • Clairvoyant

    Yup

  • Captjohn

    If something were to be done I would prefer an office like an ombudsman placed in either the Sec. Of State office or the State Auditors office. Neither office brings criminal charges. The Auditor has people with investigative skills so that would be my preference. If a citizen made a request that wasn’t satisfied in a reasonable time (maybe a month) it could be turned over to the ombudsman office and an investigation started. Once they complete the investigation their charge would be to turn it over to a states attorney for prosecution if the law was broken. They also would be charged with making a report to the legislative council of any wrong doings or questionable delays.

    • http://sayanythingblog.com Rob

      A month is a long time. They already play the delay game, and citizens can already turn their requests over to the AG for investigation.

      We need more than that.

      • Captjohn

        I don’t know what is reasonable. I’ll leave it to the legislators to sort that out, mine was a suggestion. The reason I don’t like the AG is that it becomes a question of legality immediately. The Ombudsman may be able to get compliance without resorting to a legal threat. If they can’t get compliance it would go to a states attorney where it ultimately ends up today.
        I also don’t like the AG if the emails themselves implicate that office. The Auditor usually doesn’t have a political axe to grind.

  • Say It

    Here is my solution, to the stonewalling by public officials, who do not produce public records: make them persoannly subject to fines.
    If the official does not produce the records, then I propose that $250 per day that the documents are not provided (over the current two week allowable time period currently allowed by the state), be PERSONALLY levied against that official. The entity that they work for, could not reimburse the official, but deduct the $250 a day amount from their paycheck and forward that to the state to fund an enforcement office of public records compliance.
    By making the official personally liable, the officials would make it a priority to produce the documents. The fine would come out of their paycheck.
    One requirement that I would propose, is that in order to make it fair to both the person requesting the document and the public official, is that the request and the providing of the documents be made by US Postal Service Certified Mail. This would provide (for up to 6 months), documentation, whether the requestor or the official made or sent the documents.
    I personally have three Open Public Records Requests complaints, on record, with the North Dakota Attorney General Office. I have, since March of this year, been trying to obtain a copy of meeting minutes from a gov’t entity, where I own property, at no avail.
    The public officials need to be personally held responsible, by having a fine accessed their paycheck. This would make them act, according to the law, instead of acting with impunity and not providing the records.

  • meh

    I immediately thought of “The Office of Eliminating Reducing Redundancy” or “The Department of Bureaucratic Wastesaving” while reading this article

    • http://sayanythingblog.com Rob

      I don’t see how there’s anything redundant about this idea.

      This would provide services to the public, facilitating access to public records, that don’t exist now.

      • speakinmymind

        And where do the requests end, what criteria or parameters are in place for “reasonable expectance”, and shouldn’t an agency be able to charge for copies, mail, etc.? A person could make it a hobby of their’s to continually request records because they have an axe to grind with a specific agency (sound familiar?) That agency could be unduly required to spend countless hours and tax resources meeting the requests (even those that have no basis…since it is the law, right?)…

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