Top 10 Ways to Get Your Public Entity Included in an Attorney General Opinion

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July 18, 2018


This is not a difficult thing to do. There are many ways to accomplish this goal of being featured in an opinion by the Attorney General (“AG”) on open records and open meetings. We will just focus on 10 of the top ways today. These may not be the top 10in frequency, but these are my top 10 in the category of, “Really, that is a violation?”Actually, this Top 10 list is based on 2013 violations, plus a few favorites of mine fromprior years.

Number 10: Delete emails. N.D.A.G. 2013-O-18

The Legislative Council, on behalf of a legislator, asked for a bunch of records including“[c]opies of all emails sent to or received by each University System institution presidentsince July 1, 2012. Please include emails sent or received from a president’s personalemail account if the emails are related to University System activities.”The technology folks for the university system looked into how huge this request was and the university system asked if the Legislative Council wanted to pare down the request, which they did. Now they wanted only emails from November 1, 2012, through May 1, 2013 that included certain key words.

When looking for these emails, the tech folks found about 43,000 emails in the NDSU presidents “recoverable items” folder. Emails in this folder are emails that were deleted emails and are available for 2 weeks. The University System copied these emails to an external flash drive but did not immediately inform NDSU about the emails found in this “recoverable items” folder. The tech folks requested these records be backed up but the University System failed to secure the backup from Microsoft within the four week time period, so it was no longer available.

After redaction, 897 pages of emails were provided to the Legislative Council on May 23, 2013. The Legislative Council questioned why there were not more and asked how many were deleted in the two weeks prior to the request. On June 26 the University System provided NDSU with the external flash drive that contained the items from the “recoverable items folder” and an additional 1950 records were located that met the criteria. These were provided to the Legislative Council on July 3, 2013.

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The Attorney General does not settle fact disputes, so leaves open the issue of whether the emails were intentionally deleted. However, based on the admitted fact that the University System had downloaded the “recoverable items” onto a flash drive but did not look through those emails and produce the ones that fit the criteria until they were asked again, the AG determined there was a violation of failure to review all records in possession and failure of responding in a reasonable time.

 

Number 9: Put a request on the back burner because you are a small town and are busy with other job duties plus you question the motives behind the request. N.D.A.G. 2013-O-17


In a town with a population of 61 in 2010, the city auditor got a request for records on May 28. The request was from the editor of the newspaper and was asking for expenditures and revenue reports for 2012 and 2013 and the city budget. Two days later the city auditor replied saying she would deal with this after tending to a personal matter.


After no response, the editor renewed the request on July 17. He still heard nothing so requested an opinion from the AG on August 16, on whether the open records laws had been violated.


The city auditor did then respond by sending the gathered information in a series of emails on August 26.


Three months is not a reasonable time as required by statute. The reasons given, of being a part time position and not checking the email everyday, did not fly. Also, the city auditor’s attempt to justify the delay because she questioned the motive behind the request did not excuse the delay:


“As previously determined in numerous opinions, every person has a right to inspect or receive a copy of any open public record and the motive and identity of the person requesting an open record are generally irrelevant.” N.D.A.G. 2013-O-17.


Certainly, three months is a long time, so just responding within 3 months won’t keep you out of opinions. In fact, the statutory reasonable time is fairly short, “will usually be measured in hours or in a few days rather than several days or weeks.” North Dakota

Office of Attorney General Open Records Manual, p. 10.


Number 8: Attend a public forum, sponsored by another entity, without noticing it as a public meeting.

This may qualify as a “no good deed goes unpunished” example. County commissioners were asked to attend a public forum on the construction of a new courthouse. The group organizing the event was an informal group of citizens. The commissioners were good enough to show up and also to answer questions, when asked, about the new courthouse. In fact, 4 of the 5 commissioners showed up so there was a quorum. The individual who asked several questions of the commissioners was also the one who later asked the AG for an opinion on whether the commissioners violated the open meetings or open records statutes.


One of the questioned violations was whether the commissioners were required to notice the public forum as a public meeting of the commission. The answer was “yes.” This answer to this question may seem counter-intuitive. This is a meeting not arranged by the public entity. It is not your meeting, you are asked to attend, others who are commissioners also attend, and boom it is a public meeting that you were supposed to notice. In these instances, often the meeting has been announced and publicized, often better than regular commission meetings. Often the press is there, so in effect the noticed parties already know about the meeting. Yet, it is required that you notice this meeting and take notes.


Public entities ask in these situations, what if you didn’t know a quorum was going to be there, that is, what if it is a surprise that a quorum showed up? It doesn’t matter. “The Commission is cautioned that if it is reasonable to suspect beforehand that a quorum might attend a meeting, public notice should be provided when the members learned of the gathering. If it is a surprise, notice must be provided immediately at the meeting or in some circumstances, after the meeting.” N.D.A.G. 2013-O-14, n. 29. The commission in this case also argued that they were attending only as “concerned citizens” and not in their capacity as commissioners. This didn’t fly either. Once a commissioner, always a commissioner. Even if they didn’t speak at the meeting, they were a part of the information gathering process that took place at that meeting, which is part of the decision-making process, so it is an open meeting.

Number 7: Call a special meeting without telling the newspaper and include in

the notice that “additional topics may be discussed.” N.D.A.G. 2013-O-01


Special meetings are tricky. They must be properly noticed and must be limited to the

topics included on the agenda.


A rural district ambulance board set a special meeting to be held in 3 days. The manager posted the notice on the ambulance garage door where the meeting was to be held, emailed it to the city office, provided the notice to each board member, and faxed it to the county auditor. This notice was not adequate because it was not sent to the newspaper. For special or emergency meetings the public entity must notify the official newspaper and also any media representatives that have requested to be so notified. N.D.C.C. § 44-04-20(6).


The ambulance district also violated open meeting law by being vague about what was to be discussed and for including the statement “additional topics may be discussed.” Topics that may be considered at an emergency or special meeting are limited to those included in the notice. N.D.C.C. § 44-04-20(6).

Special meetings have special rules. Tell the newspaper, be specific about what you are going to discuss, and stick to it. Don’t add on any agenda items in a special meeting.


Number 6: Require a request for open records be made in writing. N.D.A.G. 2003- O-21

It seems like a reasonable approach, to have a form for an open records request soanyone who happens to be receiving the request can make sure the necessaryinformation is received from the requester. However, if that form includes therequester’s name and address, and the public entity requires the form be filled out in order to process the request, it is a violation of open records law.


A request need not be made in person or in writing, and the copy must be mailed upon request. N.D.C.C. § 44-04-18 (2).

The Department of Human Services, back in 2003, responded to a request for a copy of the cost cutting proposal for the department by stating “they need something in writing.” This act of requiring the request in writing was in violation of the open records law. The AG pointed out that sometimes it is acceptable to ask for clarification, and as a practical matter, if they want the record mailed to them, you need to know how to address the mail. However, you can’t require a name and address. If necessary, you need to get the record ready and tell them to come and pick it up. There is no need for the requester to give their name.

Number 5: Invite people to dinner at your house. N.D.A.G. 2013-O-06 and N.D.A.G. 2013-O-07

The State Board of Higher Education, on the night before the regularly scheduled meeting, was invited to dinner at the chancellor’s house. The dinner was included in the notice for the meeting the next day as a “Dinner Social” to review higher education related legislative testimony and to discuss other North Dakota higher education issues. The Board suggested that the dinner meeting was a part of the regular meeting, but the AG did not agree. The regular meeting was the following day, making the dinner meeting a special meeting. Therefore the notice was not adequate.

The use of catch-all phrases did not give the public an adequate idea of what was going to be discussed. Additionally, the Board also met at a restaurant on another occasion, but reported they did not discuss public business. Based on this report, the AG determined that dinner did not violate open meeting law. However, as reported in N.D.A.G. 2013-O-07, it later came out that public business was discussed, so that meeting was also a violation of open meeting law.


In footnote 17 of N.D.A.G. 2013-O-06, the AG explains further that having a meeting in private homes may have a “chilling” effect on the public’s willingness to attend because they feel unwelcome or uncomfortable. It is advised that meetings in private homes should be an exception not a common practice.


Number 4: Go on a bus tour. N.D.A.G. 2008-O-28


The City of Fargo engineering department invited the Fargo city commissioners to attend a bus tour to view a potential flood control area. The bus was equipped with video displays that showed computer generated models of the project. Four of the five commissioners were on the bus. Also on the bus were 5 city employees, 9 employees of contractors, 3 members of the water district, county engineer, and a reporter from the Fargo Forum.

 

The city announced the bus tour and invited members of the media to meet at a certain time and place to follow the bus tour. However, on the bottom of the notice was “Due to limited space on the bus, the tour is not open to the public.”


At the time of the tour, 3 reporters and 3 cameramen showed up and wanted to board the bus, but there were only 2 seats available. So the reporters said they would follow behind but leave the cameramen on the bus. Then they were told there was not enough room for the cameramen and they all were asked to leave so the tour could begin. The city told the reporters to figure it out for themselves how to get the footage of the meeting and rejected the idea of one camera staying.

The Fargo Forum reporter was on the bus for the whole tour and DVD disks with the digital drawings of the project were distributed to the media.

 

A bus tour is definitely a public meeting, as it is certainly at least an information gathering step in the decision making process. It needed to be open, and operatively open, to the public, including the media.


The open meetings statute does provide that the public can be turned away if the reason is a lack of physical space in the meeting room. N.D.C.C. § 44-04-19(1). However, this section also explains that “the meeting room must be accessible to, and the size of the room must accommodate, the number of persons reasonably expected to attend the meeting.” N.D.C.C. § 44-04-19(2). So read together, this section does not allow a public entity to exclude members of the public due to lack of space unless it has first tried to make reasonable accommodations. The decision to just exclude them from the bus was deemed not reasonable.


Sometimes the bus tour is an important part of a decision making process of a public entity, and it is difficult to get all comers on a bus. In these situations it is important to provide access, like possibly a bigger bus and certainly do not state that this particular meeting is not open to the public.


Number 3: Appoint a committee. N.D.A.G. 2003-O-05


The work of public entities is complex. Often it is a good approach to appoint a committee for particular functions, rather than have the entire board or commission deal with everything. Sometimes, because the committee is not a full quorum, public entities are lulled into complacency, thinking the open meeting laws do not apply to the committee. What is key in determining if open meeting law applies is whether the committee has been delegated with authority for the entire entity.

A city auditor called city council members to see if anyone was available to attend a water board meeting. The city council had not discussed attendance at this meeting at its prior meetings and had not delegated authority. Three of the seven council members attended the water board meeting. The AG determined this was not a meeting that needed to be noticed by the city council because it was less than a quorum and the members attending had not been delegated with authority of the city council.

If the 3 members had been delegated with authority to attend the water district meeting, then it would have required a notice. The definition of a “governing body” includes “any group of persons, regardless of membership, acting collectively pursuant to authority delegated to that group by the governing body.” N.D.C.C. § 44-04-17.1(6).


Number 2: Stay in executive session too long. N.D.A.G. 2013-O-16


Executive session is a mine field, so proceed with caution. You need to have a statutory reason, you need to clearly state that reason, you need to notice the executive session, and once in executive session you need to record it and ONLY TALK ABOUT THE EXECUTIVE SESSION ISSUE. Also, do not take final action in the executive session, you must do that back in the open meeting.

A county development corporation board of directors went into executive session “to discuss proprietary information” and receive updates on several projects. No decisions were made in the open portion of that meeting. During the next month’s meeting they went into two executive sessions to discuss an employee evaluation and salary of the CEO.


The board violated open meeting laws by taking final action during the executive session of the first meeting. Final action is defined as “a collective decision or a collective commitment or promise to make a decision on any matter, including formation of a position or policy, but does not include guidance given by members of the governing body to legal counsel or other negotiator in a closed attorney consultation or negotiation preparation session authorized in section 44-04-19.1.” N.D.C.C. § 44-04- 19.2(2)(e).


At the second meeting the board violated open meeting laws because the executive session on personnel matters was not an authorized executive session for this public entity. The board was an agency of a political subdivision and recognized by resolution of a political subdivision. If the entity had been a different type of public entity, that is, one that is subject to open meetings law only because they are supported by public funds, then the personnel records would be exempt. But this board was not such a public entity.


Number 1: “Reply all” to an email. N.D.A.G. 2010-O-09 and N.D.A.G. 2007-O-14


A public entity can meet through a series of emails, so never, never, never “reply all.” A city council member emailed the mayor and the other 4 council members, informing them about a conversation he had with a local resident concerning the local landfill. The mayor responded and copied all 4 council members, giving her opinion and suggesting the matter be added to the agenda for the next meeting. Two days later, another council member emailed an opinion on the landfill to all the council members. This was deemed to be a public meeting that should have been noticed. A meeting as defined by the open meeting laws includes meetings through electronic means. This series of emails contained all four elements of a public meeting; (1) it was a meeting of a public entity, (2) of a governing body, (3) that involved public business and, (4) was a gathering via email.

The mayor believed the emails were acceptable as long as they took no action, but this is not the case. The definition of a “meeting” covers all stages of the decision-making process, including the information gathering. In this case the emails contributed to the consensus building process.


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