BISMARCK — A law passed in 2019 made communications between lawmakers and “any person” private, meaning exchanges between legislators and state leaders about public business are not being treated as public records.
As a result, emails former North Dakota Sen. Ray Holmberg, who faces federal charges, may have exchanged with his close friend and former Attorney General Wayne Stenehjem are not public record.
Lawmakers who supported the bill in 2019 said it protected the privacy of constituents so they could speak freely about personal issues, but at least one senator who sponsored the legislation said lawmakers may need to review the law after Stenehjem’s emails were hastily deleted in the days after he died.
“Now we know that maybe thousands of emails were dumped, and there may have been a purpose other than serving the best interest of the government,” said Sen. Tim Mathern, D-Fargo. “If that’s the case, we need to look at this again.”
The North Dakota Legislative Council, which gives legal advice to and drafts bills for state legislators, denied an open records request made by The Forum that asked for any emails Holmberg and Stenehjem exchanged between Jan. 1, 2020, and Jan. 28, 2022. The Forum made the request after reporting that Stenehjem did not recuse himself from a criminal investigation into Holmberg.
Holmberg, R-Grand Forks, was accused last month in federal court of traveling to Prague with intentions to have sex with a minor multiple times between June 24, 2011, and Nov. 1, 2016. He also is charged with receiving and attempting to receive child porn.
Stenehjem, also a Republican, has been described as a close friend to Holmberg, raising questions about why he didn’t recuse himself from the case as the Bureau of Criminal Investigation agents he oversees investigated Holmberg.
Stenehjem died Jan. 28, 2022, and his assistant Liz Brocker directed state information technology staff to delete the attorney general’s email account three days later. The emails are not recoverable, an outside consultant determined.
In response to The Forum’s records request, the Legislative Council cited a law that exempts a “record that reveals the content of communications between a member of the legislative assembly and any person.” That includes public employees and officers, the Council said.
The Council confirmed the law covers any communication to and from lawmakers, whether it concerns public or personal matters.
The Forum also asked for text messages sent between Holmberg and Stenehjem, but Legislative Council said it did not have access to any text messages the two exchanged.
Rewording the law
Before 2019, any “private” message lawmakers sent or received was confidential. With Senate Bill 2221 , the state Legislature deleted the word “private” from that section, making all communications to and from themselves exempt from open records laws.
Legislators also added language that would make such communications in possession of “any public officer or employee” confidential.
Sen. Judy Lee, R-West Fargo, who sponsored the bill, said she gets calls every week, sometimes more than one a day, from constituents and public employees regarding human services — she chairs the Senate Human Services Committee. People often share personal information when bringing up challenges they face, she said.
Some of that information can be difficult to share, she said. Lawmakers need to know the facts in order to help constituents, Lee said.
“We care about the constituents that we serve,” she said. “That’s where the privacy line needs to be drawn.”
Those private details shouldn’t be made available to the public, Lee said, noting the law she proposed helps protect the privacy of constituents and public employees who contact her.
“No one should feel there is going to be an intrusion by anybody,” she said.
The law helps anyone who contacts lawmakers speak freely about issues without the fear of their thoughts being made public, Mathern said in explaining why he supported the bill with Lee and others.
“It’s like an attorney-client privilege,” he said, adding the law helps people trust him with concerns.
He said the word “private” was deleted because it was hard to define what was considered private. Lee said lawmakers “used the terminology recommended by the attorneys on Legislative Council in order to address the concerns we had.”
North Dakota should preserve the ability of constituents and public employees to raise issues without facing retribution, Mathern said. He said he wants to protect good government, but he also acknowledged the potential for misuse of the law.
“We can’t do it in such a way that we cover up things that should not be covered,” he said.
Emails between legislators and public officials dealing with public business should be open record, said Jack McDonald, an attorney who represents the North Dakota Newspaper Association. During the 2019 legislative session, the open records advocate proposed adding an amendment to the bill that made correspondence regarding legislation, liability or legal issues public record.
Lee’s reasons behind the bill were logical, McDonald said, noting personal information about constituents shouldn’t be public.
However, lawmakers do the public’s business, so North Dakota residents have a right to emails that explain reasons behind deciding public policy or business, he said.
“If they were going to communicate with a public official about public business, I don’t think that should be protected,” McDonald said, adding the current law is too broad.
Lee said in 2019 on the Senate floor that she had concerns about McDonald’s amendments. Lawmakers would worry if their correspondence would be open record, she said.
“I think we’re going to find a whole lot more discussions going on by telephone because the only way to make sure that we can have an informal, casual conversation with somebody about an idea and not have it be a matter that is open to the public is to not have a record,” she said on the Senate floor.
The Senate passed the bill with McDonald’s proposal, but the House deleted his language. Ultimately, Lee’s original bill passed both chambers with wide support, making all communications to and from lawmakers confidential record when Gov. Doug Burgum signed the bill into law.
The law was passed for an honorable reason, not with bad intentions, Lee said. She also said they couldn’t have foreseen legislative records being involved in a criminal case.
“Let’s let the courts play out here and see what’s going on,” she said.
When asked if emails sent between lawmakers and state government agency heads or other elected officials should be public, Lee said that would defeat the entire purpose of the bill.
Sen. Curt Kreun, R-Grand Forks, who co-sponsored the bill, said he wouldn’t change the law for one instance. The law has worked well for constituents since it was passed, he said.
“This is a much broader issue,” he said, adding it helps lawmakers give advice to constituents and public employees about personal matters.
Kreun said he disagrees with Legislative Council’s assessment that the law includes emails discussing public matters.
He said Stenehjem’s emails shouldn’t have been deleted, adding he wants to get to the bottom of that like everyone else. Lawmakers passed a law this year that requires government agencies to keep emails for at least one year.
Source : InForum
