Blogger’s request jolts lawmakers into ‘emergency’ mode

North Dakota’s new legislation-tracking system creates unanticipated privacy concern

This one's about new technology and the law of unintended consequences.  


On Monday blogger Rob Port emailed a public-records request to his state legislature. And on Wednesday he watched online as a North Dakota lawmaker read that email on the House floor to help justify "emergency" legislation that would block Port's request. The House approved the bill and the Senate is expected act on it today.

The North Dakota state legislature apparently walks the walk when it comes to transparency: A legislation-tracking system, which came online only last week, allows residents to create a list of bills they wish to monitor and receive alerts about. The system also allows users to jot comments on their lists for future reference.

Port, who publishes the SayAnythingBlog, thought it might be enlightening to see if the comments left on these bill-tracking lists would be deemed public records and thus be available via an open-records request.

From Port's post explaining what happened:

So on Monday at 5:18 p.m. 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 Carlson maintains that "unintended consequences" - such as Port's request -- arising from use of the tracking system necessitates "emergency" action.

As he notes in his post, there are at least two issues to consider: Should the comments (and the lists, for that matter) be publicly available - Port doesn't believe so, even though he asked for the comments - and, if the bill passed by the House yesterday becomes law can it apply retroactively to his request?

"I filed the request not so much because I think people's comments should be public but because I was curious if they'd left a loophole open," Port tells me via email.  "Obviously, they did, and now I'm concerned about the legislature shutting down open records requests after the fact with legislation."

If his request is denied, he said he's likely to appeal to the state attorney general's office.

"Since this is a brand new system, I thought the question should be asked.  I asked it and ... this happened."

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