Open Records Request Sets Off Emergency Legislation In The ND House

calrson

This legislative session the State of North Dakota has made large strides in the areas of transparency. The state has created an online video system through which floor debates in the state House and Senate are streamed and archived, and they’ve created a bill tracking system through which anyone can long in, look up bills and create lists to track the ones they like.

I’ve already been using this system extensively, and while using it I noticed that there was an area where users could type in comments. Now, North Dakota’s open records laws are very broad and very strong, so I wondered if the comments users were typing into the system were accessible via an open records request.

So on Monday at 5:18pm I emailed an open records request to legislative council requesting an electronic copy of all comments made to date:

lcemail

As of the writing of this post I haven’t yet received a response to my request, but floor debate in the House today is all the answer I need as to why. House Majority Leader Al Carlson has rushed “emergency” legislation to the floor, bypassing completely the committee process, aimed at protecting comments in the legislative tracking system from open records request. Carlson says Legislative Council is confident the comments are already protected, but if they were so certain in that why the rush?

Here’s the video where you’ll see Carlson speak, followed by an objection from Rep. Kenton Onstad wondering why a committee hearing couldn’t have been held, and then Carlson reading my email on the floor:

I actually agree with Carlson’s legislation. The comments posted in this system by lobbyists and private citizens probably should be closed records. I, like Carlson, agree that the system is a wonderful thing and that we should want people tracking legislation without fear that what they’re tracking, and what comments they’re posting, might be made public.

But they can’t even subject the question to a full debate?

I’m happy my open records request was able to bring this loophole to their attention, though I’m not sure this law can be made retroactive to cover my open records request. After all, Carlson himself has now read my email on the floor of the House, clearly acknowledging that they’ve received and considered my request.

Now it’s not so much a question of whether or not the bill tracking comments are or are not public record, but whether or not the state can retroactively close off records in response to an open records request. And whether or not the legislature ought to be rushing bills like that through without the usual due diligence of the full legislative process.

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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  • $8194357

    Rules for thee but not for me…

    • http://Sayanythingblog.com The Whistler

      Yep, the legislature has required that nearly everything, including this kind of stuff, be public record in the state. But they don’t want the rules to apply to themselves.

      • pabarge

        You completely missed the point. The lege is open and transparent. The poster is talking about comments on the open records forms by citizens. Please read more carefully in the future.

        • http://Sayanythingblog.com The Whistler

          Actually I think the legislature exempted themselves from open meeting laws. For example members of the legislature could meet off of the capitol grounds and make a decision.

          But if they were on a city council or a school board that would be illegal. So I do not consider the legislature to be open and transparent.

          As far as the comments made by the public. Public comments at the city level and the school boards are a matter of public record. So why shouldn’t that apply to comments to the legislature?

          I did read what I read and I do know what I’m talking about.

          Here’s the relevant parts of the ND century code. http://www.legis.nd.gov/cencode/t44c04.pdf

        • hippie1367

          No the leg doesn’t want people seeing what bribes the lobbyist scum are offering.

      • $8194357

        Never have applied to the government elite.

  • Kevin Flanagan

    The ND legislature would never do anything that would result in unintended consequences, would they?

  • dlao

    so it is none of our business what comments people are making on proposed legislation. More of the same from the High and Mighty “Al Carlson”.

    • Carl Pham

      Quite right. It *is* none of your business. You are confusing the public’s right to know what the *legislature* is doing with the public’s right to know what private citizens are doing, and saying. Two different things.

      • dlao

        So we should not be allowed to know who says what in comittee hearings either by your logic. cool

  • Matthew Hawkins

    Do they charge you for the record requests you make?

    • http://sayanythingblog.com Rob

      Depends on the request. They can charge copy fees, but not if the record is electronic and I request a digital copy. They can also charge an hourly fee if retrieving the record takes more than an hour.

      It does create some problems in that sometimes they inflate the costs to discourage access.

      • headward

        That can’t be cheap. State employees are getting a raise.

        • http://sayanythingblog.com Rob

          Well the hourly rate is set in statute not on what the employee makes. But no, not cheap at $25/hour

          • SusanBeehler

            Back in the day when email was not a popular means of communicating. You could read transcripts or listen to tapes of many types of legislative items, at the legislative council library. One day when I was there, a lady was sitting and cutting articles from the newspaper on certain topics to keep in the library. If they could hire someone to clip, why not hire someone to redact? Why can’t our legislators allow viewing of these documents in a redacted form if they do not want to forward copies?

      • SusanBeehler

        They can charge for redacting also. A open request I made in Mandan would cost me over $200 some dollars even electronically. The AG ruled they had to give it to me electronically if I requested but still would cost me, less the copy fee they were tacking on. My request had to do with affordable housing. I didn’t pay the fee, so the over 1 inch stack probably went in the garbage.

  • WOOF

    People voluntarily comment on an open government system, why should comments be private?
    They’re part of the political process.

    Let the voices of freedom ring.

    • gtwreck

      True except for one problem. The Left, in this country, has made it a point to smear anyone who dares to use his freedom of speech to disagree with their views. We need some protection against that. The Law does not provide protection. We have seen recently there is one law for celebrities and another for the proletariat. Actually same law but different enforcement mechanism.

      • UtopianDevil

        It isn’t just ‘The Left’ that smears those that disagree with them. This is a problem with media in general in our country. Both sides attempt to vilify the opposition. If you look at the problem through a partisan filter, you are only seeing half of it.

      • WOOF

        Get out of the kitchen.

      • pabarge

        Then don’t comment. Seriously, you want one law (open and transparent) for the legislators and another law (closed and hidden) for people who type their comments into an open, public record? Srsly?

      • CN

        You are an idiot. You don’t even deserve a thoughtful reply, just you are an idiot. The right and the left are both guilty of smearing along with all negative things.

      • alex

        The left? What? Same goes for the Left and Right. Republicans did the same crap to their own party member, Ron Paul, during the nomination process. What a joke.

      • Mutiny32

        I really hope you’re being sarcastic.

  • Edd

    Congratulations Rob on finding this loophole. Our state government may not be perfect, but at least they do respond better than most.

    • Mike Peterson

      Like their response to our call for tax relief and keeping things local, right?

      • $8194357

        10X
        Starve the beast….

  • headward

    The legislature is astroturfing. They just don’t want to be caught. How many boogie men does the legislature pass a day?

  • http://Sayanythingblog.com The Whistler

    What are they hiding?

    • pabarge

      comments made by citizens on the public record. Did you read the article at all?

  • Mike Peterson

    hey “if you got nothing to hide, you got nothing to fear!” KIDDING! It drives me up the wall when people say that- as if America is just another piece of dirt on the earth, without its founding ideals

  • SusanBeehler

    Good job! Rob. I was wondering why we now have to log in to access bills and calendars, why was the system changed? There appears to be some back door around it because I have been able to get in without logging in too.

    • http://sayanythingblog.com Rob

      I don’t believe you do have to log in to access those things.

      • SusanBeehler

        Are you going to http://www.legis.nd.gov? Because once you are on that page you have to log in, I don’t know where else to find the links, I was using http://www.legis.nd.gov because it was what I always used in the past. I even emailed them to request the link to the bills, they sent me to http://www.legis.nd.gov/files/resource/63-2013/miscellaneous/housesenateprefilelist_0.pdf

      • SusanBeehler

        The tracking part I have not been able to get to work I still have to go to the calendar and track as I did in the past, their is a RSS feed but it is in some weird code. How do you NOT log in to access the bills? The problem is the state sees what we are tracking, why can’t they make their system available without a log in.

  • Tim Heise

    This made my Day Rob. You are already famous in this state now even more so. I wish I could do something and have the entire state rush into emergency legislation.

  • XBradTC

    I have no problem exempting comments from the requests. We have a right to know what our government is up to, but not necessarily a right to know what private citizens are saying to the government.

    • SirIzakNuton

      Tell me why, xbradtc, that the public (which is made up of private citizens, by the way) doesn’t have the right to know what the public (again, private citizens) is saying to the government? Please convince me! I really want to know.

      Granted, a lot of commenters attack others within the comment section, but a lot of great ideas come out of these forums, too. Representative government (which is what ND has, last time I checked), involves a vigorous debate between peers (and make no mistake, private citizens are the peers of their representatives), not some closed-door discussion between elites who lord over us. We get enough of that from the federal government.

      • Carl Pham

        Because what you’re talking about is the worst kind of staged and artificial public debate, where nothing is seriously said, for fear of making some kind of mistake that will haunt you forever. If you’d ever actually participated in democratic goverment — or just run a business, really — you’d understand the absolutely vital role of *some* degree of privacy in getting genuine opinion and honesty from people.

        Do you think the President of the United States and the Prime Minister of England would have more productive discussions on thorny problems if they did it during a press conference, with every word videotaped for later second-guessing and analysis, use in attack ads, et cetera?

        Would you have a more or less frank and useful discussion with your daughter about her possible goofing off or cheating in her 5th grade classroom if you did it in the school auditorium, with all her teachers, past and future, and all her friends, past and future, listening in?

        Your problem is you’re using word games (who is defined to be “public” in the “public’s right to know”) instead of common sense.

        • http://Sayanythingblog.com The Whistler

          1. Open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind but diplomacy shall proceed always frankly and in the public view.

        • SirIzakNuton

          Don’t you dare say I’m “using word games…instead of common sense” I said, and I still mean, “Please convince me! I really want to know” In fact, your argument makes a lot of sense, but you ruined it by lashing out at me, a person who was open to discussing this issue. I am fully willing to state that I was wrong if people convince me that I was, but I won’t stand for personal attacks when it is unwarranted.

        • tonguetiedfred

          I can easily see that making the comments public domain would have a chilling effect on citizen input. Does the public have the right to know how I vote in elections? It is very close to the idea of the secret ballot.

    • pabarge

      So, you do want two laws. One for everyone else and another for you. Can you tell us where that has got us in the past?

  • http://www.facebook.com/people/Jorge-Emilio-Emrys-Landivar/37403083 Jorge Emilio Emrys Landivar

    I suspect its a way to hide sockpuppets.

    • https://twitter.com/davidjkramer DavidKramer

      I would have to agree with this comment here. I am speculating that you have some legislators creating socks to push the commenting on the bills.

  • Dick Beninya

    laws are for the little ppl

  • SirIzakNuton

    Quoting Rob: “I actually agree with Carlson’s legislation. The comments posted in
    this system by lobbyists and private citizens probably should be closed
    records.”

    I have to disagree here, Rob. Why should comments be closed (especially those of lobbyists), and especially since the “State of North Dakota has made large strides in the areas of transparency during the legislative session”

    What is the justification to keeping these records under wraps? The people of ND deserve to know all that is going on within those chambers, and the comments to those deliberation are a part of that.

    • http://sayanythingblog.com Rob

      It isnt just lobbyists, though. It is private citizens too.

    • Carl Pham

      Because debate that has zero privacy is artificial, posed, and useless. What exactly would YOU post on online fora like this one if you knew for sure your wife, boss, future employer, former girlfriend, neighbor, the police, your vengeful ex-wife, a customer with a grudge, et cetera could ALL access every word you’d written, and do any kind of easy-peasy search on it?

      You’d be a hell of a lot less forthright, and the quality of debate would suffer.

      • onlyabill

        What would be wrong (just asking) to making all comments display as anonymous users? Create an account, get assigned a random public name that does not relate to you? You can them post comments without the worry that the comments could be tracked to you.

        • SirIzakNuton

          onlyabill: The challenge with anonymous users is that yes, they get to hide who they are when making comments, but then, it would be hard to trace those who make threatening or insulting attacks. Probably, this could be acceptable, but only if you made it clear in the Terms of Use that people needed to keep their comments within the spirit of open debate, rather than view their comments as a “free for all” against those whom they disagree with.

      • SirIzakNuton

        Yet, on the other hand, how is prohibiting input from the citizens affected by a bill going to help? Consider the propensity of politicians today who continue to make concessions with each other until all our freedoms and responsive/responsible government are but a memory. Before you flame me again, I want to let you know that the above is a sincere question.

  • Fortysevener

    I kept asking them for all that Obama money.

  • Carl Pham

    Why can’t the state close off comments retroactively? Legislatures make laws that apply retroactively all the time. It doesn’t violate a law of physics, or the Constitution.

    • http://twitter.com/sqlrob Rob

      uhhh.

      From section 9 of the US Constitution. Whether this applies to the states, I don’t know:

      “No Bill of Attainder or ex post facto Law shall be passed.”

  • Mike55_Mahoney

    Comments might show influence peddling in the making. You can’t see that /sarc.

  • Yogibare

    Are comments to the on-line system any different than are the comments made to a committee hearing?
    Perhaps the only way to have communication with a legislator to be confidential is to do it in person and in a private setting?????

  • pabarge

    Is there some reason that comments should not be open and publicly available?

    If you need to, put a disclaimer up that states that any comments one leaves on the site will be part of the public record and available by FOI request, etc.

  • islan

    Very interesting.

  • Christian

    Interesting question. A public bill-tracking service that requires an intentional subscription, which allows the user to provide their own commentary on the legislation they are tracking. Obviously, the comment feature is intended to help individuals put personal notes or thoughts down on the bills, otherwise the commentary would be published categorically when somebody looked up any bill.
    Posters on this piece are howling for transparency, but in reality the comments provided by lawmakers on this service are likely entitled to more legal protection that those of citizens. Why? Legislative privilege enables the legislative branch to keep secret their reasons for supporting, opposing or staying neutral on bills. The reasoning is fairly simple and was introduced by the Founders, as I recall, who were careful to prevent the executive branch (i.e. the President, police and military powers) from shaking down members of Congress and legislatures in order to thwart or advance legislation.
    Unfortunately for this old state rep, legislative privilege isn’t a blanket protection (and he makes no mention of the privilege during his floor speech, which is tailored towards the general public). Not every comment on bills would likely be something like, “I can’t support this because so-in-so in my district would be ruined by it” or, “I need to support this or this lobby or that lobby will try to ruin me.” I would gather that a legal review of the comments posted on this service would require a case by case review, at least for lawmakers. I am not sure private citizens would have legal protections to information posted on what I understand to be a publicly created and operated system (some university created it, correct?) A good argument for privacy could be made, however, if there was no notice or understanding that the information would be made public. There also appears to be no indications that the personal comment section is intended to be a forum for lobbying the government.

    • SusanBeehler

      I am on the system and I am not sure what the “comment” section is. You check bills you want to track and create a file of with a name you choose such as labeling them Property tax or income tax or whatever you want to call the file. Maybe I haven’t found a “comment” feature. I just like clicking on the topic list and then the bill better because it was faster. The log in page seemed to be my only option, because it did not seem as user friendly because it was slow and you cannot easily go between bills and the bills topic page and the calendar than to the hearings, I thought the reason they went to this was maybe they don’t want it easy.

  • hippie1367

    You can’t have people seeing what bribes the lobbyists are offering.

  • Ro

    They cannot make the protection retroactive. Ex post facto laws are banned by the constitution.

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