This legislative session the State of North Dakota has made large strides in the areas of transparency. The state has created an online video system through which floor debates in the state House and Senate are streamed and archived, and they’ve created a bill tracking system through which anyone can long in, look up bills and create lists to track the ones they like.

I’ve already been using this system extensively, and while using it I noticed that there was an area where users could type in comments. Now, North Dakota’s open records laws are very broad and very strong, so I wondered if the comments users were typing into the system were accessible via an open records request.

So on Monday at 5:18pm I emailed an open records request to legislative council requesting an electronic copy of all comments made to date:

As of the writing of this post I haven’t yet received a response to my request, but floor debate in the House today is all the answer I need as to why. House Majority Leader Al Carlson has rushed “emergency” legislation to the floor, bypassing completely the committee process, aimed at protecting comments in the legislative tracking system from open records request. Carlson says Legislative Council is confident the comments are already protected, but if they were so certain in that why the rush?

Here’s the video where you’ll see Carlson speak, followed by an objection from Rep. Kenton Onstad wondering why a committee hearing couldn’t have been held, and then Carlson reading my email on the floor:

I actually agree with Carlson’s legislation. The comments posted in this system by lobbyists and private citizens probably should be closed records. I, like Carlson, agree that the system is a wonderful thing and that we should want people tracking legislation without fear that what they’re tracking, and what comments they’re posting, might be made public.

But they can’t even subject the question to a full debate?

I’m happy my open records request was able to bring this loophole to their attention, though I’m not sure this law can be made retroactive to cover my open records request. After all, Carlson himself has now read my email on the floor of the House, clearly acknowledging that they’ve received and considered my request.

Now it’s not so much a question of whether or not the bill tracking comments are or are not public record, but whether or not the state can retroactively close off records in response to an open records request. And whether or not the legislature ought to be rushing bills like that through without the usual due diligence of the full legislative process.

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