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Stark County afoul of ND sunshine laws, North Dakota AG office opinion finds

North Dakota Attorney General Wayne Stenehjem issued an opinion Wednesday that Stark County violated state open records law in delaying response to an open record request.

FILE PHOTO: Wayne Stenehjem, North Dakota Attorney General, issued an opinion on Wednesday that Stark County violated open records laws. (Dave Wallis/The Forum)
Wayne Stenehjem, North Dakota Attorney General, issued an opinion on Wednesday that Stark County violated open records laws. Forum News Service photo
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DICKINSON — Stark County was found in violation of North Dakota’s Sunshine Law in failing to provide requested records within a reasonable time and failing to communicate an explanation for the delay in response to a request for public records in 2020, according to an opinion filed by the North Dakota Office of the Attorney General on Wednesday.

The complainant, Leslie Ross, alleged that the Stark County Board of Commissioners violated North Dakota Century Code by not providing requested records withing a reasonable time and improperly denied her request to obtain records related to finalist applications for a human resources position.

In North Dakota, the Open Records Statute is a series of laws designed to guarantee that the public has access to public records of governmental bodies.

Anyone can request public records and no statement of purpose is required. There are no restrictions placed on the use of records nor is a response time specified according to the open records statute NDCC 44-04-18.

Some restrictions apply, with records related to juveniles; trade secrets; public employee medical and assistance records; workers compensation; unemployment; tax information; law enforcement investigation records; and most Department of Human Services records being exempt.

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According to the AG opinion, released Wednesday, Ross made a records request to Stark County for the records on Oct. 27, 2020, and after receiving no response to her request, sent a reminder on Nov. 9, 2020.

On Nov. 12, 2020, Stark County Assistant State's Attorney Jim Hope responded to Ross' request with a denial because, "he did not believe that three or more finalists for the position were designated, making the records confidential."

More than a month later, after further review, Hope determined that finalists were designated and ultimately provided the records to Ross on Dec. 30, 2020.

Leslie Ross
Leslie Ross' request for public records were improperly denied, then unreasonably delayed, in violation of North Dakota open records laws, a ND Attorney General's Office opinion released on Wednesday found. Dickinson Press file photo

Ross alleged in a complaint to the AG's office that Stark County violated the open records laws by not responding to her request in a timely fashion, and further denied her entire record request without stating the statutory exemptions — misapplying North Dakota Century Code and denying her access to public records.

"When a public entity receives a request for records, it must, within a reasonable time, either provide the records or explain why the records are not being provided. A delay may be appropriate for a number of reasons, including the number of records requested, reviewing a large volume of documents to respond to a request, excising closed or confidential information, availability and workload of staff who can respond to the request, or balancing other responsibilities of the public entity that demand immediate attention...," Wayne Stenehjem, North Dakota Attorney General, said. "Here, the County replied that it had experienced staff turnover, illnesses and an election that contributed to the delay in responding to Ms. Ross' request. Part of the delay was due to a misapplication of North Dakota Century Code, which provides protection for records of applicants during the application process. The county admits it did not apply the statute correctly."

Stenehjem continued, "Ultimately, it took eleven business days to acknowledge Ms. Ross' request...It took over two months, until December 30, 2020, to start providing the records to Ms. Ross...It is my opinion that a delay of more than two months was unreasonable."

According to the AG opinion, the matter requires no further corrective measures to be taken by the county.
While the opinion was released on Wednesday, Stark County had already complied with the request and provided all the records to Ross in 2020.

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