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An explanation of "sunshine laws"

As a former government attorney, I still field questions about "sunshine laws" — laws about how open records and open meetings are handled. This is an interesting topic, one that is hard to encapsulate in a single column.

The federal government has sunshine laws, as does the District of Columbia. Additionally, all 50 states have their own version of sunshine laws. In North Dakota, the vast majority of open records and open meetings laws are contained in Chapter 44-04 of the North Dakota Century Code. Additionally, the website for the North Dakota attorney general, www.attorneygeneral.nd.gov/open-records-meetings, is a useful resource for navigating this legal topic.

Citizens — the governed — love open government. In 2000, John Hoeven was elected the 31st governor of North Dakota, serving 10 years before ascending to the U.S. Senate. That was the same year that Wayne Stenehjem was elected as North Dakota's attorney general. Since then, no two public servants have worked harder to champion open government. It's one of several reasons for their popularity, as well as their hard work for their constituents.

As a start, it is far easier to understand this topic if you begin with the premise that open records laws are one legal topic and open meetings are another separate legal topic. Although the two disciplines do intersect, they're different enough that they comprise their own area of law.

Open records are easier to encapsulate. A "record" includes all recorded information regardless of physical form. So a piece of paper can be a record, but so can an email or a computer file or an audio or video recording. To be a public record, a record must have a connection with how public funds are spent or with a public entity's performance of its governmental functions or its public business. This definition does not consider the format of the record or the location of the record.

Under North Dakota law, all government records and all government meetings must be open to the public unless otherwise authorized by a specific law. What does that mean? It simply means that if there is a doubt as to whether a government record or meeting is "open," then the presumption is that it is open. In order for the record or meeting not to be open, there must be a clear statement in the law to that effect.

Anyone has the right to request a public record. They don't need a reason to request it. They don't need to reside in the state to request it. And the public entity does not have the right to ask why the record is being requested or ask for identification or require a written or in-person request. One exception to this is if the request isn't a request for a clearly identifiable record. In that case, there can be a delay in providing the record until the request is clarified in writing.

A request for a public record must be responded to within a "reasonable" time period. The definition of reasonable varies with the request; larger requests or more complicated requests may take more time. And it is important to note that a request for information is not the same as a request for a public record. A public entity does not need to respond to requests for information about its decisions or to explain the content of the records. They only need to provide the record.

Open meetings laws are more complicated. In a very general sense, all meetings of a public entity are open unless otherwise authorized to be closed by a specific provision of law. A "meeting" is defined as a gathering of a quorum of the members of a governing body of a public entity regarding public business. Training seminars or purely social gatherings attended by a quorum of a public entity are generally not meetings.

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