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.