Legislature Questions Whether NDSU President Broke The Law When Destroying Records

If you thought the drama in higher education was over after the hurried-up departure of Chancellor Hamid Shirvani, think again.

The North Dakota University System, and North Dakota State University in particular, have an atrocious track record when it comes to transparency. And it appears as though the hostility toward transparency which permeates the system isn’t just targeted at journalists and, *ahem*, bloggers. It includes state policy makers too.

An attorney for Legislative Council is asking Attorney General Wayne Stenehjem to look into whether or not North Dakota State University President Dean Bresciani broke the law in destroying tens of thousands of emails. In a June 20th letter (see below), attorney John Bjornson indicates that over 45,000 emails were deleted from President Dean Bresciani’s university system email account the same day as a request for Bresciani’s emails was filed by Legislative Council.

Bjornson is asking, on behalf of an unnamed legislator, whether the deletion of those emails breaks the state’s open records laws. How serious is that question? Per the statues Bjornson mentions specifically, the charges could range from a class a misdemeanor to a class c felony.

The statutes Bjornson specifically mentions are 12.1-11-05, which outlaws tampering with public records:

12.1-11-05. Tampering with public records.

1. A person is guilty of an offense if he:
a. Knowingly makes a false entry in or false alteration of a government record; or
b. Knowingly, without lawful authority, destroys, conceals, removes, or otherwise impairs the verity or availability of a government record.

2. The offense is:
a. A class C felony if committed by a public servant who has custody of the government record.
b. A class A misdemeanor if committed by any other person.

3. In this section “government record” means:
a. Any record, document, or thing belonging to, or received or kept by the government for information or record.
b. Any other record, document, or thing required to be kept by law, pursuant, in fact, to a statute which expressly invokes the sanctions of this section.

And 12.11-06, which criminalizes a public officials refusal to do his/her duty:

12.1-11-06. Public servant refusing to perform duty.

Any public servant who knowingly refuses to perform any duty imposed upon him by law is guilty of a class A misdemeanor.

This is a big deal. By my reading of the law above, if it is determined that Bresciani purposefully destroyed tens of thousands of emails to avoid a public records inquiry, he could be guilty of a felony.

There’s some weasel room in the law, but you really have to wonder why tens of thousands of emails (by the North Dakota University System’s own admission to Legislative Council) would have been destroyed right around the time legislators were making requests for those emails.

Whatever the outcome of this inquiry, this is yet another black eye for the university system.