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Port: Someone needs to be fired over email deletions in the attorney general's office

North Dakota's open records law have a gaping loophole in them when it comes to records retention, and someone in the attorney general's office just drove a semi-truck through it.

1631216+North Dakota capitol.JPG
North Dakota state capitol building
File photo
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MINOT, N.D. — North Dakota has very good open records laws, rooted in a presumption that, absent some specific exemption written into the law, every record the state has is open to public inspection.

But there's a glaring loophole: We have almost nothing in the way of law that guides records retention, nor any good way to detect when a record that should be maintained in the public's interest is disposed of. State agencies or departments may have internal policies governing these things, but there is nothing in the law dictating how long something like an email or a letter must be kept.

Someone in the office of North Dakota's attorney general just drove a semi-truck through that loophole .

In the context of some controversy related to cost overruns in the construction of office space , some reporters, including myself and Jeremy Turley, made a request for records including email correspondence.

Today, the attorney general's office responded, indicating that many of the emails which could have been responsive to the request aren't available because they've been deleted.

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"[On] January 31, 2022, then-Attorney General Stenehjem’s entire state email account was deleted, at the instruction of a nonsupervisory, non-attorney employee of the Attorney General’s Office who stated the action was approved by then-Deputy Attorney General Seibel," the email response read.

"Similarly, the entire state email account for former Deputy Attorney General Seibel was deleted on May 23, 2022, at the instruction of the same nonsupervisory, non-attorney employee of the Attorney General’s Office," it continued.

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To sum up, all of former Attorney General Wayne Stenehjem's emails were deleted three days after his death, before his replacement, Drew Wrigley, was even appointed. Then, in May, the person who apparently approved that deletion, then-Deputy Attorney General Troy Seibel, who quit on March 16, saw his own emails deleted by the same employee.

It's not clear who, if anyone, authorized that deletion.

"There were no pending open records requests for the emails when the accounts were deleted," says the statement from Wrigley's office. To illustrate how serious this is, if there had been a pending request, the deletion would have been a felony crime.

Let's take a moment here to credit Wrigley for doing the right thing. His predecessor was one of the most successful political figures in state history, and a widely beloved person, and it would have been very easy to cover this up, simply telling reporters that there were no responsive records.

Unless someone blew a whistle, how would we know that the emails had been deleted? And even if we did suspect something, the people in charge of handling open records complaints work for the attorney general.

By his own account, Wrigley acted immediately when he learned of the deletions, asking the state's IT personnel to see if anything could be recovered. They ultimately turned over what could be found.

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So, kudos to him — he'll be on the Plain Talk podcast with me on Monday, July 18, to discuss this — but that doesn't alleviate the problem before us.

First, we need to know the motivation behind these deletions. They weren't made as a part of some standing policy. They clearly happened to achieve a purpose. The public deserves to know what that was.

Was there some smoking gun evidence of corruption or other types of untoward activities in those emails? All the assurances in the world won't matter now because the records are gone.

Second, we need swift action to move anyone responsible for the deletions out of public service. They are no longer deserving of the public's trust. Their actions should be investigated and barring some new and exculpatory information, they should be fired.

Third, we need to close this loophole. The legislature needs to develop, and place in statute, some basic guidelines maintaining records like emails and letters, and then create some meaningful consequences if those guidelines are violated.

A new session of the Legislature begins in January. This must be a priority, before the wholesale expungement of important public records becomes the norm in state government.

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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