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Port: Are we sure that deleting those email accounts wasn't a crime?

"You have been very understanding and patient as we worked together during the transition, but I believe we both now recognize that we will not achieve the close working relationship that is vital between the Attorney General and his Executive Assistant," Liz Brocker wrote in an email to Attorney General Drew Wrigley.

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North Dakota Attorney General Drew Wrigley.
Chris Flynn/The Forum
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MINOT, N.D. — Liz Brocker, the state employee who ordered, without authorization, the deletion of email accounts for former Attorney General Wayne Stenehjem and former Deputy Attorney General Troy Seibel, has officially resigned .

Asked this afternoon if Brocker had resigned, current Attorney General Drew Wrigley declined to comment, providing Brocker's resignation letter instead.

In it, Brocker makes no mention of the email controversy.

"The position of Executive Assistant to the Attorney General is unique, and usually the position 'goes with' the Attorney General," she wrote in the letter, dated July 15, "so I thank you for having allowed me to assist you for the last few months."

"You have been very understanding and patient as we worked together during the transition, but I believe we both now recognize that we will not achieve the close working relationship that is vital between the Attorney General and his Executive Assistant."

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Per the letter, Brocker's last day was July 15.

In an interview earlier today, Wrigley told me he doesn't believe the destruction of these records was a crime because there were no active requests for them from the public, and there is no statute or policy in his office governing how these records should be retained.

I'm not sure I agree.

In a Jan. 29, 2022, email, sent just days after the death of former Attorney General Wayne Stenehjem, Brocker asked state IT personnel to delete Stenehjem's email account.

She specifically mentioned a desire to keep the records from the public. "We want to make sure no one has an opportunity to make an Open Record request for his emails, especially as he kept EVERYTHING," she wrote.

On May 23, 2022, Brocker made a second request, this time to delete Seibel's email account.

The deletion of the accounts came to light after an open record request filed by myself, and others, included emails from both accounts in its scope. Wrigley told me in an interview that his office worked with state officials to recover some emails, but that an unknown number of records were lost.

Here's where the question of a potential crime comes in.

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The North Dakota Century Code does make it illegal to tamper with or destroy a public record to impede the public's access to it. "A person is guilty of an offense if he ... knowingly, without lawful authority, destroys, conceals, removes, or otherwise impairs the verity or availability of a government record."

It's a class C felony if the act is committed by someone who is considered to be a custodian of the record.

Section 12.1-11-05 of the North Dakota Century Code
Section 12.1-11-05 of the North Dakota Century Code
Screenshot

In the response to my open records request, in which Wrigley's office first communicated that these accounts had been deleted, they made it clear that Brocker didn't have authority to do this. The statement stated her actions were "not authorized by policy or supervisory personnel."

Wrigley made similar comments during his podcast interview with me .

It seems, to this observer, that a criminal charge would hinge on whether the destruction of a document was done to impede the public's access to it.

Wrigley says that there were no requests pending for these emails when they were destroyed, and that's true, but Brocker wrote in her email that she wanted the emails gone before someone in the public could request access. What is that if not an explicitly stated intent to impair the availability of the records by destroying them?

At the very least, this matter should be forwarded to a prosecutor outside of Wrigley's office for review and potential charges.

Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at rport@forumcomm.com. Click here to subscribe to his Plain Talk podcast.
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