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Forum Editorial: Wrigley’s response to a massive destruction of public records is inadequate

North Dakota Attorney General Drew Wrigley must go further to determine whether a trove of deleted emails can be recovered -- and name an outside prosecutor to determine whether any laws were broken.

Editorial FSA
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Imagine if a rogue state employee at the Capitol in Bismarck took a torch to a file cabinet full of sensitive documents, turning its contents into a pile of smoldering ashes.

That would be an obvious destruction of public property. Even more importantly, it would be a destruction of public records — an act impeding the essence of government operations and, more disturbingly, obliterating the means for citizens, through open record requests, to learn what public officials are doing.

That’s essentially what happened when an assistant for the late Wayne Stenehjem, the state attorney general who died unexpectedly in office last January, asked a state information technology staff member to delete his email account — and in doing so, eliminated years of emails, important public records.

"First thing Monday, could you have Wayne's nd.gov email account shut down and the emails in his in box, in box folders, sent items - deleted," executive assistant Liz Brocker wrote on the day after Stenehjem’s death to the office's information technology/criminal justice information services director.

In other words — throw out the filing cabinet containing all of the attorney general’s archived email correspondence.

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A chain of emails released by North Dakota Attorney General Drew Wrigley on Monday revealed that office spokeswoman Liz Brocker asked the office's information technology director to delete former Attorney General Wayne Stenehjem's email on Jan. 29.

Brocker added this as her explanation, laying bare her motive of concealment of public records: "We want to make sure no one has an opportunity to make an Open Record request for his emails, especially as he kept EVERYTHING. This was approved by Troy," a reference to Troy Seibel, then the deputy attorney general, Brocker wrote.

This is a blatant act to subvert North Dakota’s open records law, which holds that public records are presumed to be open unless specifically exempted by law.

It also might have been a crime, despite the bland absolution given by Drew Wrigley, Stenehjem’s appointed successor as attorney general. Wrigley has said that because there were no pending public records requests — Brocker acted quickly enough to thwart any such request — it was not illegal.

In other words, if you want to get away with something, do it very quickly.

Wrigley — the state’s top law enforcement official — essentially shrugged and said there were no state laws or policies in his office governing the retention of such records.

Not so fast. We refer the attorney general to a statute in North Dakota Century Code that makes it illegal to tamper with or destroy a public record or hamper public 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 record.”

Any violation, if committed by someone who is considered a custodian of the record, is a felony. Clearly Brocker made herself the custodian of Stenehjem’s email account in his absence, and clearly the pliable employee acted accordingly.

Just why was Brocker so frantic to hide documents that she buried Stenehjem’s entire trove of emails before he even had a funeral? (She did, however, take time to make copies of personal emails for Stenejem’s widow.)

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Brocker’s improper actions stemming from her misguided sense of loyalty are all the more disturbing because of her position: she served as media contact and routinely handled public records requests.

Unfortunately, we may never know what information was deleted. North Dakota information technology officials have said the emails are irretrievably lost.

Their destruction came to light when Forum News Service reporter Jeremy Turley submitted an open records request for documents shedding light following the disclosure that Wrigley had learned of a $1.8 million cost overrun during Stenehjem’s tenure involving leased office space.

Did the deleted emails contain important information about the unexpected leasing costs? What important information was lost with the emails?

Every effort must be made to try to recover the documents. Here’s what needs to happen:

Wrigley must hire outside computer experts who specialize in data recovery to see if the information can be resurrected. He must ask an outside law enforcement agency to investigate and determine whether any laws were broken and whether anyone should be charged.

It appears that the attorney general’s office has no effective policy governing the preservation of documents; Wrigley should implement a meaningful records retention policy, something every state agency should have in place.

Wrigley seems to hope that Brocker’s resignation will allow the scandal to fade away. That shouldn’t be allowed to happen. This is an atrocious destruction of records from the very office charged with upholding open records laws.

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This is undoubtedly an awkward way for Wrigley to begin his tenure as attorney general — but he must demonstrate that he’s up to the job of ensuring that Brocker is held accountable for her flagrant violation and that state government is transparent.

If Wrigley fails to act, it’s only a matter of time before another rogue official decides to toss out a file cabinet full of public records.

Related Topics: GOVERNMENT AND POLITICS
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