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Judge rules trove of DAPL security documents are public record

A ruling last week by a North Dakota district court judge could open up some 16,000 documents related to a partnership between operators of the Dakota Access Pipeline and the private security contractor TigerSwan during the Standing Rock protests of five years ago.

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Protesters march along the pipeline route during a protest against the Dakota Access pipeline near the Standing Rock Indian Reservation in St. Anthony, N.D., Nov. 11, 2016.
Stephanie Keith / Reuters
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BISMARCK — Documents pertaining to a partnership between operators of the Dakota Access Pipeline and a private security company during the protests at Standing Rock five years ago are public record, a North Dakota judge ruled last week.

The decision, issued Friday, Dec. 31, by District Court Judge Cynthia Feland, denied an effort by the Texas-based Energy Transfer Partners, the parent company of Dakota Access, to reclaim roughly 16,000 documents pertaining to its partnership with the private security contractor TigerSwan on the grounds that they contain confidential and proprietary information.

Until last week’s ruling, the state-held records were shielded under a temporary restraining order issued during the court proceedings.

The TigerSwan documents have been at the heart of two parallel lawsuits in North Dakota, which were merged by Feland. In the first case, Energy Transfer Partners attempted to recover the records from the North Dakota Private Investigation and Security Board by suing the state board and TigerSwan. In the second, First Look Institute, publisher of the nonprofit news outlet The Intercept, sued the state board in an effort to access the records. 

In a 29-page opinion, Feland dismissed Energy Transfer’s arguments that the documents are not public and found the pipeline company failed to provide any exemptions that would justify shielding documents from the press, watchdogs or any other civilians who wish to see them.

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Because the Private Investigation and Security Board obtained the documents from TigerSwan while performing its duties as a state entity, it has legal responsibility to maintain them as public records, the judge said.

“Absent a specific exception, the Disputed Documents are subject to the open records law,” she wrote. 

The contents of the documents are not clear. TigerSwan handed them over to the North Dakota Private Investigation and Security Board under a judge’s orders in 2020 amid a two-year lawsuit over whether the North Carolina-based security company was legally operating in North Dakota at the time of Dakota Access protests in 2016 and 2017.

That case ended in TigerSwan paying a $175,000 settlement to North Dakota and agreeing not to operate in the state, though the company admitted no wrongdoing.

Reporting in The Intercept accused TigerSwan of deploying military-style tactics against anti-pipeline protesters, and the news outlet has sought to access the documents surrendered to the Private Investigation and Security Board since filing its lawsuit against Energy Transfer in November of 2020.

Bismarck attorney Tim Purdon, who represents Intercept publisher First Look in its efforts to access the TigerSwan files, welcomed Feland’s ruling on Monday and argued the pipeline company has no right to tell the state which documents should be available to the public.

“These records have been kept from the media for over a year, despite the fact that they are clearly public records,” he said.

Shawn Grinolds, a North Dakota attorney representing Energy Transfer, referred comment to the company’s out-of-state counsel, who did not provide comment on Monday. 

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John Shorey, executive director of the Private Investigation and Security Board, said his agency had no comment on Feland’s ruling. 

A separate lawsuit over the TigerSwan documents is expected to be heard before the North Dakota Supreme Court in the next few months. Energy Transfer appealed that case — which could represent another channel for the pipeline company to shield the documents — to the state's high court after attempts to intervene in TigerSwan's settlement with the state were denied by an administrative law judge and a district judge.

Late Monday evening, Energy Transfer also filed a motion seeking permission to appeal Feland's ruling up to the state Supreme Court. In that filing, attorneys for the pipeline company asked that the judge continue to keep the documents sealed until the Supreme Court has made its own determination on whether they are public.

Meanwhile, one advocate for the press in North Dakota welcomed Feland’s decision on Monday as an important win for government transparency and accountability.

North Dakota Newspaper Association attorney Jack McDonald said the state has seen many rulings and opinions over the years illuminating the laws around open meetings and how quickly government entities must respond to public records requests, but few legal decisions defining the parameters of which state records are public.

“I think this was a very good one for the public records law because it really spells out what it is,” McDonald said.

The North Dakota Newspaper Association has joined First Look with an amicus brief in Energy Transfer's pending case before the North Dakota Supreme Court, alongside the North Dakota Broadcasters Association and the Fargo-based High Plains Reader.

In addition to deeming the TigerSwan records public, Feland lifted a temporary restraining order that kept the documents under lock during the court proceedings. Purdon said he and his client are still working out how to get the documents to The Intercept in the wake of Feland’s decision, but added, “we’re on our way to that goal.”

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Some records within the 16,000 may still be withheld under Feland’s ruling, Purdon added, since the judge left an opening for the state to deem some portions exempt from records requests under state sunshine laws. 

Feland did not make a determination on arguments by Energy Transfer that TigerSwan committed a breach of contract by handing over the documents to the state.

Readers can reach Forum reporter Adam Willis, a Report for America corps member, at awillis@forumcomm.com .

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