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Published April 04, 2013, 10:52 AM

Jamestown man says 30-day limit on record review ‘absurd’

A veterinarian here who sought an attorney general’s opinion on whether city officials unreasonably delayed his public records request says the “absurd” response he received highlights a flaw in the state’s open records laws.

By: Mike Nowatzki, Forum News Service

JAMESTOWN, N.D. – A veterinarian here who sought an attorney general’s opinion on whether city officials unreasonably delayed his public records request says the “absurd” response he received highlights a flaw in the state’s open records laws.

Gary Pearson sent a letter to Jamestown Mayor Katie Andersen on Jan. 14 requesting public records related to the East Business Loop reconstruction project, which he claims provided inadequate access to his and other businesses along the route. When he didn’t get all the records he thought he should have received, Pearson filed a second request on Jan. 19.

After receiving no response to that request, Pearson sent a letter dated Feb. 17 to the attorney general’s office seeking an administrative review of whether the city violated a state law outlawing unreasonable delays in fulfilling public record requests.

Liz Brocker, executive assistant to Attorney General Wayne Stenehjem, said in a Feb. 21 letter that because Pearson’s request was received more than 30 days after the date of the alleged violation, “we cannot take any further action in response to your letter.”

Pearson disputes the timeline, but he’s equally frustrated that state law doesn’t define “unreasonably delayed.” He also takes issue with the 30-day cutoff for requesting an opinion, saying it “clearly subverts the language” of the law that makes an unreasonable delay a violation.

He contends that with the 30-day cutoff for reviews, “A public entity could completely evade the statute by simply not responding, if that’s the interpretation that the attorney general’s office is going to take. It’s an absurd situation.”

Assistant Attorney General Mary Kae Kelsch, who directs the office’s State and Local Government Division and has handled open records complaints for 10 years, said the office usually hears from people within a week of their open records request being filed if they’re upset about the response time. Still, Kelsch acknowledged Pearson isn’t the first person to run into the 30-day cutoff.

“We never like to see that, and so it’s certainly something that if we continue to see problems, that we’ll raise that in the future,” she said. “But there’s always going to have to be a line drawn, and there’s always going to be someone on the other side of it.”

State lawmakers previously extended from 30 days to 90 days the period for requesting an opinion about possible open meetings violations, because meetings held without proper notice often didn’t come to light until the meeting minutes were published a month or more later, Kelsch said. But the period for seeking opinions on open records delays wasn’t similarly extended.

Brocker and Kelsch both noted that despite Pearson’s request arriving after the 30-day period – again, an interpretation he disputes – the office called Jamestown city officials to ask if the records had been provided. It wasn’t until then that the city administrator realized Pearson’s second letter included a request for additional records, the AG’s office said.

Even if Pearson’s opinion request had arrived in time, there would be no remedy if a violation were found because he already has the records, Brocker said.

Pearson also doesn’t believe the city turned over all of the records requested on the business loop project. Brocker said the attorney general’s office must base its conclusions on information provided by the public entity.

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