Rod St. Aubyn: Deck Seems Stacked Against The Public When It Comes To Transparency

ou may have noticed an article in Sunday’s Fargo Forum about North Dakota’s open records/open meetings laws. I am becoming more and more knowledgeable about the issue after two recent open records requests for a lobbying client of mine. As I dig more into it, I have become even more concerned about our current system. Though I am pleased that the Attorney General has plans to establish a task force to study the issue and come up with some changes especially with the new digital age, I am disappointed that the legislature is not being more proactive on the issue especially after all the violations that occurred in higher ed.

I have learned a few things in the process of dealing with the open meeting/records laws. First of all, the time deadlines for filing a complaint can be very short. That is the first “Ace” that the “public entity” has in their hand. For example, let’s say you request some records from a public entity and they say that they are going on vacation for two weeks and won’t be able to get to the task until they return and it may take a week or two upon their return. Assuming that it is a very small board or commission, you want to be accommodating. However, time drags on for a while longer. So you file an open records complaint to the Attorney General’s Office. Because more than 30 days have elapsed since your request, there is nothing they can legally do based on the law. You must file a complaint within 30 days of your request for records.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#000000″ txt_color=”#ffffff”]…I am disappointed that the legislature is not being more proactive on the issue especially after all the violations that occurred in higher ed.[/mks_pullquote]

When we finally got the records we found what we think are several violations of the open meeting/records laws and other laws. However, because the 30 day deadline has passed, there is nothing that the AG’s office can do about the open meeting/record laws. These boards can intentionally delay providing the records by saying that they are busy. If you file a complaint within the 30 day period, the AG’s office can see if there is a legitimate reason why the records cannot be provided sooner. If the AG’s office finds that the public entity’s reasoning is valid, you will have to wait.

Now we come to another obstacle. A public entity can simply tell you that they no longer have the record you requested. How in the world do you prove that they do? What is most troubling with this is that the law says “the attorney general shall base the opinion on the facts given by the public entity.” So what authority does the AG have in saying that the agency did not provide the record, even if they do have the record? This is the second “Ace” that the public entity has in their hand.

I mentioned before that we discovered other possible violations of ND law. I was told that the AG’s office does not have the authority under the open meeting/open records laws to deal with these issues. My options were to visit with the Board, hire a lawyer and possibly take civil action, or visit with the executive branch (the Governor). The possible violations of law pertain to the Board. Why would someone have any luck with that option? This is the third “Ace” that the public entity has in their hand.

Now let’s look at the legal option. Most people don’t have the financial resources to fight these battles through a lawyer, so in most cases that is not a viable option. Lo and behold, the public entity now holds the fourth “Ace” in their hand. And you haven’t even been dealt your cards!

[mks_pullquote align=”left” width=”300″ size=”24″ bg_color=”#000000″ txt_color=”#ffffff”]Most people don’t have the financial resources to fight these battles through a lawyer, so in most cases that is not a viable option.[/mks_pullquote]

Finally, you can explore going to the executive branch. If you have a chance, take a look at all the regulatory boards, commissions, and other public entities that are created by the legislature. Many of

the occupational regulatory boards can be found in Title 43 in the North Dakota Century Code . Most have the authority to establish administrative rules that have the force of law. Of all of the occupations listed, most have their own regulatory boards. How they are governed varies greatly. Most board members are appointed by the Governor, but many of the laws pertaining to these boards do not provide that board members can be removed by the Governor. Those that do provide for removal by the Governor, vary greatly for the justification for removal. So in effect, most of these boards are insulated. The legislature can make changes to these boards every two years, but for the most part they are autonomous entities. So now the public entity has a “Joker “in their hand along with the 4 “Aces”.

I attended a legislative hearing recently where an executive director from a public entity responded to a complaint by others that the public entity often went into executive session and kicked people out of the public meeting. In their response, they acknowledged that they have gone into executive session for different reasons. Among the reasons, the first that was stated was to discuss “legislative strategies.” From my reading of the law, that is NOT an approved reason for the executive session. Yet, who can complain, after all this obviously happened more than 90 days ago. So tell me, what chance does the average citizen stand against this stacked deck?