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Port: Attorney General's Office has an email retention policy, but it's pretty much worthless

State agencies are required to maintain a records retention schedule with the state's chief information officer. The Attorney General's Office has one for electronic communications, but it doesn't do much.

North Dakota Capitol in Bismarck. Forum photo by Darren Gibbins
North Dakota Capitol in Bismarck.
Forum photo by Darren Gibbins
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MINOT, N.D. — The deletion of email accounts for former Attorney General Wayne Stenehjem, who died earlier this year, as well as his former deputy Troy Seibel, has raised a lot of eyebrows.

Stenehjem's long-ime executive assistant, Liz Brocker, said she ordered the deletion Stenehjem's email account with the permission of Seibel. She then ordered the deletion of Seibel's account, months later after he left the Attorney General's Office, apparently on her own.

Wayne Stenehjem
Former North Dakota Attorney General Wayne Stenehjem
File photo

And, if you listen to certain talk radio shows, there a whole lot of conspiracy theories about what might have been in those emails. We're not going to spend any time on that sort of thing, because we should work on facts, not conjecture based on a desire to shoehorn this ugly situation into a political agenda.

A question many of you readers keep asking me as this story has unfolded is, didn't the Attorney General's Office have a policy for records retention that applies to emails?

I've spoken to people who work in county and city government, and they tell me they have a retention policy. Many school districts and private sector business do, too.

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But somehow, the Attorney General's Office, the state agency in charge of enforcing North Dakota's open records laws, didn't?

Drew Wrigley, who was appointed to replace Stenehjem by Gov. Doug Burgum, and into whose lap this mess has fallen, has told me in an interview that the office didn't have a policy.

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That's not entirely accurate. They do have a policy, but it's so vague that they might as well not have one.

Section 54-46-05 of the North Dakota Century Code makes it clear that each state agency must develop "schedules proposing the length of time each state record series warrants retention" and submit those schedules to the State Records Administrator. By law, that's either the chief information officer or a person designated by the CIO to be the administrator.

The CIO is Shawn Riley, a member of Burgum's cabinet , and he told me he's designated a woman named Aimee Bader to be the administrator.

Asked for a copy of the records retention schedule for the Attorney General's Office, Riley pointed me to an online database for the Records Retention Program where all of the schedules for the state's various agencies are kept.

Searching that database, the records retention schedules for the Attorney General's Office led me to schedule 450102 , which deals with electronic communication records and is a part of the state's General Records Retention Schedule .

What does it say about how long a state agency must keep an email? It actually doesn't provide a timeline. It states that electronic communications — which would include emails — shall be kept until "conditions are met."

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Agencies are allowed to "dispose of records with transitory value after action is taken."

This means that if an email is no longer needed for ongoing business, it can be disposed of immediately.

The retention policy for electronic communications for the North Dakota Attorney General's office, as filed with the state's records administrator.
The retention policy for electronic communications for the North Dakota Attorney General's office, as filed with the state's records administrator.<br/>
Screencapture

Which brings us back to the fiasco over the deletion of Stenehjem and Seibel's email accounts.

According to Brocker's account, she reviewed the emails in the accounts before they were deleted. But according to a timeline of events released by Wrigley, Brocker first contacted IT personnel to delete the account on the evening Jan. 29, 2022, which was a Saturday.

It was deleted on Jan. 31, a Monday, with the IT department noting that Brocker and Seibel had completed a review of the emails.

Was that really enough time for a good faith review?

Should Brocker, an executive assistant, have been doing that review, with apparently little in the way of guidance from an attorney or supervisory official in the Attorney General's Office?

My answers to those questions is a "no" in each instance, but barring those concerns, it seems the account deletion was done in keeping with the retention policy the attorney general has on file, such as it is.

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The timeline for the deletion of Seibel's account was a bit longer. Per the timeline, the IT department placed his account on Brocker's computer for review on April 27. The account was deleted on May 23. Again, that seems to comply with the letter of the email retention policy, which affords the agency an enormous amount of discretion.

Though I still maintain, as I argued in a previous column , that even if these actions complied with this very loosey-goosey retention policy (Wrigley has told me his office is in the process of developing new policies on retention), a crime may have been committed here.

In one of her emails to the IT department, pertaining to Stenehjem's account specifically, Brocker wrote, "We want to make sure no one has an opportunity to make an Open Record request for his emails, especially as he kept EVERYTHING."

Screen capture of an email sent by Liz Brocker, a former executive assistant to Attorney General Wayne Stenehjem, who ordered his email account deleted shortly after his death.
Screen capture of an email sent by Liz Brocker, a former executive assistant to Attorney General Wayne Stenehjem, who ordered his email account deleted shortly after his death.<br/>
Screencapture

Section 12.1-11-05 of the North Dakota Century Code states: "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 A misdemeanor. It's a Class C felony if the person responsible is considered to be a custodian of the records.

Brocker wrote that she wanted to keep Stenehjem's emails away from the public. Doesn't that seem like a violation of the law?

The North Dakota Democratic-NPL, among others, have called for Wrigley to turn the investigation of this matter over to an outside prosecutor to determine if a crime has been committed.

He should do that as soon as possible.

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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