OFFICE OF THE MOUNTRAIL COUNTY STATE'S ATTORNEY P.O. Box stany, NO Sore Wade 6. Engt State's Aty. wongetdas gov Telephone (70) 628-2065, Wiliam & Woods, J, Asst State's Ay, ariBesei@s gov Fax No (701) 628-3705 ‘Aube J. Feel ASs State's Ally wneocs@resicom MEMORANDUM I was appointed as a Special Assistant Burleigh County States Attorney on January 22,2023. The appointment was “for the review of Montana Department of Justice ease MC221207 (hereinafter “Montana Report”) and any prosecution that may arise from review of said case.” | have attached a written copy of said Appointment to this Memorandum. (Attachment #1) Ihave concluded my review of one portion of the Montana Report, with that portion being a review of the actions surrounding the deletion of emails from Wayne Stenehjem’s email account. After reviewing the mat s, | have concluded that there is not sufficient evidence contained within the Montana Report to warrant charges against any individuals for the deletion of Wayne Stenehjem’s emails. My conclusion is based solely upon the materials contained within the Montana Report, application of any applicable North Dakota statutory law, case law or Attorney General Opinions that were in effect as of January 29, 2022, and through June 30, 2023, and a thorough review of the legislative history of H.B. 1529 as introduced and passed by the 2023 North Dakota Legislature, and signed into law by Governor Burgum. As an overview, I determined that N.D.C.C. §12.1-11-05 “Tampering with public records”, would be the criminal statute that would be applied to the facts presented in the Montana Report. N.D.C.C. §12.1-11-05 has been in effect since 1975, and states as follows 1A person is guilty of an offense if he a. Knowingly makes a false entry in or false alteration of a government record; or b. Knowingly, without lawful authority, destroys, conceals, removes, or otherwise impairs the verity or availability of a government record. 2. The offense is: a. A class C felony if committed by a public servant who has custody of the government record. b. A class A misdemeanor if committed by any other person. 3. In this section "government record" means: a. Any record, document, or thing belonging to, or received or kept by the government for information or record. b. Any other record, document, or thing required to be kept by law, pursuant, in fact, toa statute which expressly invokes the sanctions of this section Page 1 of 6{1 Lam declining prosecution due to the lack of clear definition during the time period from January 29, 2022, to June 30, 2023 within North Dakota law that electronic mai or communication was a “government record”, which is an essential element of the crime of Tampering with public records, in violation of N.D.C.C. §12.1-11-05. In order to prosecute a person under N.D.C.C. §12.1-11-05 for acts that may have occurred during the period of time from January 29, 2022, to June 30, 2023, it is necessary to determine whether electronic mail (“email”) was at that time defined as being a “government record.” The definition of “government record” under N.D.C.C. §12.1-11-05(3) does not specifically include the term “electronic mail”. Further, I was unable to locate any North Dakota Supreme Court cases of record or North Dakota Attorney General Opinions that had interpreted the definition of “government record” under N.D.C.C. §12.1-11-05(3) to include electronic mail When a statute's language is ambiguous or of doubtful meaning, the North Dakota Supreme Court has stated that it may consider extrinsic aids, including legislative history, along with the language of the statute, to ascertain the legislature's intent. State v. Rambousck, 479 N.W.2d 832 (N.D. 1992) N.D.CC. § 1-02-39(3). It isa well-settled rule of statutory construction that penal statutes should be strictly construed against the government or parties seeking to impose them and in favor of persons on whom they are sought to be imposed, State v. Hogie, 424 N,W.2d 630, 635 (N.D.1988). AAs such, I had to look elsewhere within North Dakota law to determine whether “electronic mail or communication” was statutorily determined to be a “government record.” In my research, I found several references to electronic mail within the North Dakota Century Code, but, again, most, if not all, of the references shed little light as to whether electronic mail was statutorily considered to be “government record.” ‘One exception was N.D.C.C. Chapter 54-46, known as “Records Management.” Within that Chapter, N.D.C.C. §54-46-02 contains a statutory definition of “record” which is pertinent to this matter. In reviewing N.D.C.C. §54-46-02, it was necessary for the undersigned to review the specific language of N.D.C.C. §54-46-02 during the time from January 29, 2022,to June 30,2023. During that time frame, N.D.C.C. §54-46-02 (as initially adopted in 1961, and as amended in 2011) reads as follows: 1, "Agency" means any department, office, commission, board, or other unit, however designated, of the executive branch of state government, including the state board of higher education and the entities under the control of the state board of higher education. 2. "Record’” means document, book, paper, photograph, sound recording or other material, regardless of physical form or charaeteristies, made or received pursuant to law or in connection with the transaction of official business. Library and museum material made or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and of processed documents are not included within the definition of records as used in this chapter. Page 2 of 63. "State record” means: a. A record of a department, office, commis designated, of the state government. b. A record of the state legislative assembly held by an agene} ¢. A record of any court of record, whether of statewide or local jurisdiction. 4. Any other record designated or treated as a state record under state law. ion, board, or other agency, however I noted that the phrase “electronic mail or communication” did not appear in the definition of “record”in N.D.C.C. §12.1-11-05 as it appears above. For clarification purposes, I have attached a copy of N.D.C.C. §54-46-02 that was in effect until July 1, 2023. (Attachment #2) During the 2023 North Dakota Legislative Session, there was discussion regarding the email account of Stenehjem, that it was deactivated and that the emails therein were deleted. This discussion resulted in the introduction of and passage of H.B 1528, a copy of which is attached hereto. (Attachment # 3). H.B. 1528 is important in that it amended N.D.C.C. §54-46-02, specifically adding language to clarify that the term “record” included any electronic mail or communication. In accessing the legislative history of HB 1528, I reviewed the video of the House Industry, Business and Labor Committee, when that Committee held the first hearing on HB 1528. The Committee Hearing took place on February 6, 2023, and Representative Corey Mock, District 18, Grand Forks, North Dakota, testified before the Committee in support of HB 1528. At that hearing, Rep. Mock filed his written testimony, which was dated February 6, 2023, a copy of which is attached hereto (Attachment #4 ), which stated in part: Under current law, email is not considered a record, but information contained in an email may be classified as a record if it contains information in connection with the transaction of official business. (Mock, written testimony, page 3) Within Rep. Mock’s verbal testimony before the Committee, memorialized in the Legislative video, he stated that HB 1528 was introduced to remove any ambiguity as to whether email was a government record. Rep. Mock further stated that email itself was not a record, but was a delivery device that may contain records. (2/6/2023, House Industry, Business & Labor Committee, @ 10:15:10). The House approved HB 1528 on February 16, 2023, by a vote of 93-0. Once passed by the House, HB 1528 made its way to the Senate, The Senate State and Local Government Committee held its initial hearing on HB 1528 on March 23, 2023. Rep. Mock again submitted written testimony dated March 23, 2023 in support of HB 1528, a copy of which is attached hereto (Attachment # 5). I think it is important to quote portions of that written testimony, as it has significance in relation to my decision. Page 3 of 6On page #2 of his written testimony, Rep. Mock states the following: “Because email itself if not classified as a “record,” any statutory obligation to review or retain items of this nature are ambiguous, at best.” On the same page of his written testimony, Rep. Mock states: “We cannot change the past. But we have the ability and responsibility to learn from our experiences. HB 1528 is our opportunity to remove the ambiguity and hopefully prevent similar circumstances from ever happening again.” On page #3 of his written testimony, under the heading “Section 1", Rep. Mock provides the substantive wording needed to resolve the ambiguity as to whether electronic mail or communication is a “record” with the following statements: Updated our legal definition of “record” to include any electronic mail or communication that includes official business “activities, policies, or decisions that provide administrative, operational, fiscal, historical, audit, or business value.” This clarifies that “nonbusiness related or draft electronic messages” are not considered records. Under current law, email is not considered a record, but information contained in an email may be classified as a record if it contains information in connection with the transaction of official business. This affirms that email us a record and subject to applicable retention policies if it contains information related (o official business. Itis important to note that Rep. Mock, in that same written testimony, stated that the reason HB 1528 was needed is that: » ince email itself is not classified as a record, any statutory obligation to review or retain items of this nature are ambiguous, at best”; 2) “HB 1528 is our opportunity to remove the ambiguity”; and, 3) “[U]nder current law, email is not considered a record, but information contained in an email may be classified as a record if it contains information in connection with the transaction of official business.” The North Dakota Legislature passed H.B. 1528, and Governor Burgum signed, H.B 1528 on April 21, 2023, which then became law on July 1, 2023, It should be noted that in Section 7 of H.B. 1528, as passed by the 2023 North Dakota Legislature and signed by Governor Burgum, it states “[T]his Act becomes effective on July 1, 2023. Page 4 of 6‘When reviewing any change to a statutory provision in North Dakota lavy, it is important to keep in mind that N.D.C.C. §1-02-10 states as follows: “No part of this code is retroactive unless itis expressly declared to be so.” Again, Section 7 of H.B, 1528 specifically states “[T]his Act becomes effective on July 1, 2023.” As such, there is no doubt that the statutory changes made by I1.B, 1528 are not to be applied retroactively, and can only be applied to matters that occurred from and after July 1, 2023, Now, I want to go back to my earlier discussion involving N.D.C.C. §54-46-02, as it was one of the statutes that was amended by the passage of H.B. 1528. As of July 1, 2023, the new language added to N.D.C.C. §54-46-02 was that the term “Record” was amended to define that electronic mail or communication was considered to be a “record” of a government agency. Please note the changes made in N.D.C.C, §54-46-02, which I have underlined below: N.D.C.C. §52-46-02. As used in this chapter, unl requires: 1. "Agency" means any department, office, commission, board, or other unit, however designated, of the executive branch of state government, including the state board of higher education and the entities under the control of the state board of higher education, 2. "Data" does not include malware or regulated information as defined under section 54-59.1-01, 3. "Departmental agency" means an agency, not including a board or commission as define bytitles 4.1 and 43. 4. "Record" means document, book, paper, photograph, electronic mail or communicati sound recording or other material, regardless of physical form or characteristics, made or received pursuant to law or in connection with the transaction of official business aetivities, policies, or decisions that provide administrative, operational, fiscal, historical, audit, or business value. Library and museum material made or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, nonbusiness related or draft electronic m wes and stocks of publications and of processed documents are not included within the definition of records as used in this chapter. 5. "State record” means: a. A record of a department, offic designated, of the state government. b. A record of the state legislative assembly held by an agency. c. A record of any court of record, whether of statewide or local jurisdiction. d. Any other record designated or treated as a state record under state law. the context or subject matter otherwise commission, board, or other agency, however Page 5 of 6In summation, after July 1, 2023, electronic mail or communication is now statutorily defined as a record. Prior to that date, the North Dakota Legislature, in adopting H.B. 1529, recognized that the term “government record” or “record” was ambiguous, and that there existed no clear authority in statute, case law or Attorney General Opinion that electronic mail or communication was a “record” or “governmental record.” Therefore, I am declining prosecution under N.D.C.C. §12.1-11-05 or any other criminal statute due to the lack of clear definition within North Dakota law that during the time period from January 29, 2022, to June 30, 2023, electronic mail or communication was defined as a “record” or “government record.” Page 6 of 6Attachment | | Fe fee APPOINTMENT Julie Lawyer, Burleigh County State's Attorney, does hereby appoint Wade Enget to the position of Special Assistant State's Attorney for Burleigh County, effective January 22, 2024, for the review of Montana Department of Justice case MC 221207 and any prosecution that may arise from review of said case. Dated this 22nd_day of January, 2023 Julie OATH STATE OF NORTH DAKOTA ) )ss COUNTY OF MOUNTRAIL ) |, Wade Enget, do solemnly swear that | will support the Constitution of the United States and the Constitution of the State of North Dakota and that | will faithfully discharge the duties of the Office of Special Assistant State's Attorney in the County of Burleigh and the State of North Dakota on the above-referenced case according to the best of my ability. So help me God, ae Dated this: day of January, 2023, fy Lea Mbdckboq L fi Subscribed and swom to before me this 4 day of January, 2023. th Dakota Notary Public arsslon expires June 1, 2025;Attachment 3 & hages Sixty-eighth Legislative Assembly of North Dakota In Regular Session Commencing Tuesday, January 3, 2023 HOUSE BILL NO, 1528 (Representatives Mock, Bosch, Ista, Kempenich, Louser, Roers Jones, Toman, Weisz) (Senators Davison, Paulson, K: Roers, Wanzek) ‘AN ACT to amend and reenact sections 15-10-44, 54-46-02, 54-46-04, 54-46-05, and 54-46-08 of the North Dakota Century Code, relating to the retention of electronic mail for institutions under the Control of the state board of higher education, final disposition of records, mandatory records retention policies for state agencies, and the administration of employee accounts upon ‘employee departure from an agency; to provide for a legislative management study; to provide an effective date; and to dectare an emergency. BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA: SECTION 1. AMENDMENT. Section 15-10-44 of the North Dakota Century Code is amended and reenacted as follows: 15-10-44. Higher education information technology - Board duties - Reports. 1. The state board of higher education shall manage and regulate information technology planning and services for institutions under its control, including} a, Development of information technology policies, standards, and guidelines in coordination with the information technology department. b. Implementation of a process for project management oversight and reporting, ©. Integration of higher education information technology planning and reporting with the board's strategic planning process and annual performance and accountability report required by section 18-10-14,2, d. Participation in interet2 or other advanced higher education or research-related networking projects as provided in section 54-59-08. @. Development of an annual report concerning higher education information technology planning and services. f. Requiring utilization by each institution under the contro! and supervision of the board of systemwide electronic mail services provided by the board for all public business electronic correspondence 9. Development and implementation of an electronic mail retention policy for the board and institutions under the supervision and control of the board which requires retention of nonstudent employee electronic mail messages for at least twe-yearsone year after the creation or receipt of the message unless the electronic mall message includes malware ‘or regulated information as defined under section 54-59.1-0 2. The state board of higher education shall collaborate with the information technology department to coordinate higher education information technology planning with statewide information technology planning, 3. The state board of higher education shall provide advice to the information technology department regarding the development of policies, standards, and guidelines relating to access to or use of wide area network services as provided by section 54-59-09.4, H, B. NO. 1528 - PAGE 2 ‘The state board of higher education shall present information regarding higher education information technology planning, services, and major projects to the information technology committee on request of the committee, SECTION 2. AMENDMENT. Section 54-48-02 of the North Dakota Century Code is amended and reenacted as follows: 54-46-02. Definitions. ‘As used in this chapter, unless the context or subject matter otherwise requires: 1 2 a5 "Agency" means any department, office, commission, board, or other unit, however designated, of the executive branch of state government, including the state board of higher education and the entities under the control of the state board of higher education. "Data’_does_not_include_malware_or_regulated_information as_defined_under_section 34-597-01 "Departmental agency" means an agency, not including a board or commission as defined by Illes 4.1. and 43. “Record” means document, book, paper, photograph, electronic mail or communication, sound recording or other materia, regardless of physical form or characteristics, made or received pursuant to law or in connection with the transaction of official business activities. policies. or Gecisions thal provide administralive, operational. fiscal, historical, audit, or business value Library and museum material made or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, nonbusiness-related or drafl electronic messages and stocks of publications and of processed documents are not included within the definition of records as used in this chapter. "State record” means: a. A record of a department, office, commission, board, or other agency, however designated, of the state government. b. record of the state legislative assembly held by an agency. ©. Arecord of any court of record, whether of statewide or local jurisdiction. d. Any other record designated or treated as a slate record under state law. SECTION 3. AMENDMENT, Section 54-46-04 of the North Dakota Century Code is amended and reenacted as follows: 54-46-04. Duties of administrator. The administrator shall, with due regard for the functions of the agencies concerned: 1 2. Establish standards, procedures, and techniques for effective management of records. Make continuing surveys of paperwork operations and recommend improvements in current records management practices including the use of space, equipment, and supplies employed in creating, maintaining, storing, and servicing records. Establish standards for the preparation of schedules providing for the retention of state records of continuing value and for the final disposition of state records no longer possessing administrative, legal, of fiscal value.H.B, NO. 1528 - PAGE 3 Ensure that each departmental agency maintains. for at least one year. data contained in electronic mail_accounts for agency heads. state officers appointed by the governor under chapter 44-02, and elected executive branch officials. Develop a training program for agencies regarding the management of state records. Obtain reports rom agencies as are required for the administration of the program. Receive reports of noncompliance with the records management program. Upon review of the report, the administrator shall: a. Recommend training for the noncompliant agency: b. Submit the report to human resource management services for consultation to determine Whether disciplinary action is appropriate: <. Submit the report to the office of the state auditor to include noncompliance findings in the agency's audit and to determine whether reporting findings of noncompliance. to the legislative audit and fiscal reviow committee is appropriate: or d. Submit the report to the office of the attorney general to determine appropriate action, including prosecution or referral to_human resource_management services or the. agency's human resources department for disciplinary action, SECTION 4. AMENDMENT. Section 54-46-05 of the North Dakota Century Code is amended and reenacted as follows: 54-46-05. Duties of agency heads. The head of each agency shall: 1 6 Establish and maintain an active, continuing program for the economical and efficient ‘management of the records of the agency. Make and maintain records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency designed to furnish information to protect the legal and financial rights of the state and of persons directly affected by the agency's activities. Submit to the administrator, in accordance with the standards adopted by the administrator, Schedules proposing the length of time each state record series warrants retention for administrative, legal, or fiscal purposes after it has been received by the agency. Submit to the administrator lists of state records in the custody of the agency which are not needed in the transaction of current business and which do not have administrative, legal, or fiscal value. Cooperate with the administrator in the conduct of surveys made by the administrator Pursuant to this chapter._including resolving findings of noncompliance with the records. management program as may be indicated in the final survey repor., Failure to cooperate with ‘the administrator may result in reported noncompliance as authorized under subsection 6 of section 54-46-04. Comply with the rules, standards, and procedures adopted by the administrator. SECTION 5. AMENDMENT. Section 54-46-08 of the North Dakota Century Code is amended and reenacted as follows:H. B. NO. 1528- PAGE 4 54-46-08. Determination necessary for final disposition of records - Review of state data. 1 Prior to the final disposition of any type or class of record, the administrator, after consultation with the official or department head eoneernedowning the record, the attomey general, the state auditor, and the state archivist, shall determine that the type or class of record has no further administrative, legal, or fiscal value and is subject to final disposition under section 54-46-08. or section 54-46-09. Each departmental agency shall maintain, for at least one year, data contained in alactronic. ‘mail_accounts and personal file storage, for agency heads, state officers appointed by the ‘governor under chapter 44-02, and elected executive branch officials, Each agency shall develop policies related to the assumption of employee account. ‘ownership upon employee departure, For an employee who holds a supervisory position ‘or above, the agency shall place on hold an employee account to preserve the employee account if one of the following occurs: (1) The employee is involuntarily terminated: (2) The employee is placed on administrative leave: (3) The employee resigns or departs without notice: (4) The employee dies: or (5) Anevent the agency deems sufficient to place the account on hold. b. Anagency shali ensure the employes account remains on hold been reviewed by the appropriate individual, The head of an agency, a records manager. or an employee designated by the head of an agency. shall review the employee account {or all supervisory employees, except as required under subdivision c, Ifthe employee was the head of an agency. a state officer appointed by the governor. under chapter 44-02. or an elected executive branch official. he employee account must be reviewed by the employee's successor and, if the administrator deems it necessary. the state archivist the ace has d. For purposes of this subsection: (1) “Employee account” means physical files_and_electronic_files._communications,_ allachments. and other information stored in an employee electronic mall account or ‘electronic file storage account: (2) "Employee's successor" does not include an individual acting in the successor's role ‘0 position temporarily before a successor is appoinied under section 44-02-03, and (3) ‘Onhold’ means in a state of preservation in which nothing may be altered and for which access is immediately restricted to review by the appropriate individual as required under this subsection. {fa statute requiring retention of a record does not either provide a specific retention period or specifically provide that the record be permanently retained, the administrator, after ‘completing the consultation required by this section, shall establish a specific retention period for the record. The administrator shall annually survey the state agencies and shall order final disposition under section 54-46-08.1 or section 54-46-09 of any records which have been determined to have no further administrative, legal, or fiscal value pursuant to this section. SECTION 6. LEGISLATIVE MANAGEMENT STUDY - EXECUTIVE BRANCH BOARD AND COMMISSION POLICIES.HB. NO, 128- PAGE 5 1, During the 2023-24 interim, the legislative management shall consider studying the records management policies of state agencies, including boards and commissions. The study must include: a b. «. Areview of policy uniformity and training resources; ‘An analysis of technological capabilities and limitations; Evaluation of the feasibility of providing electronic mail and file service solutions for statewide public entities, including boards and commissions; and ‘An analysis of the development, implementation, enforcement, and auditing of records management policies and practices 2. The legislative management shall report its findings and recommendations, together with any legislation required to implement the recommendations, to the sixty-ninth legislative assembly. ‘SECTION 7. EFFECTIVE DATE. This Act becomes effective on July 1, 2023. SECTION 8. EMERGENCY. This Act is declared to be an emergency measure.HB. NO. 1528 - PAGE 6 Speaker of the House President of the Senate Chief Clerk of the House Secretary of the Senate This certifies that the within bill originated in the House of Representatives of the Sixty-eighth Legislative Assembly of North Dakota and is known on the records of that body as House Bill No. 128 and that two-thirds of the members-elect of the House of Representatives voted in favor of said law. Vote: Yeas 91 Nays 0 Absent 3 Speaker of the House “Chief Clerk of the House This certifies that two-thirds of the members-elect of the Senate voted in favor of said law. Vote: Yeas 46 Nays 0 Absent 1 President of the Senate Secretary of the Senate Received by the Governor at__M. on. - 2023. Approved at M.on , 2023. Governor, Filed in this office this __day of. , 2023, at o'clock _ M. Secretary of StateAttachment 3 CHAPTER 54-46 . T Pages RECORDS MANAGEMENT Section 54-46-01. Short title. 54-46-02. Definitions, 54-46-03. State records administrator. 54-46-03.1, Transfer of records management functions authorized. [Repealed] 54-46-04. Duties of administrator, 54-46-05. Duties of agency heads. 54-46-06. Assistance to legislative and judicial branches 54-46-07. Records not to be destroyed or removed. 54-46-08. Determination necessary for final disposition of records. 54-46-08.1. Preservation of records found to be archival resources. 54-46-09. Destruction of nonrecord materials and nonarchival resources. 54-46-10. Rules and regulations. 84-46-11. Annual report. 54-46-12. County, city, and park district records — Uniform program established by administra- tor. 54-46-13, Rules for state and human éervice zone records — Administrator to adopt. 54-46-14, Continued confidentiality of records. 54-46-01. Short title. This chapter must be known as the Records Management Act. Source: S.L. 1961, ch. 333, § 1. Law Reviews. North Dakota's Historic Preservation Law, Robert B, Beck, 53 N.D.L.Rev. 177 (1976). 54-46-02. Definitions. As used in this chapter, unless the context or subject matter otherwise requires: 1, “Agency” means any department, office, commission, board, or other unit, however designated, of the executive branch of state government, including the state board of higher education and the entities under the control of the state board of higher education. 2, “Record” means document, book, paper, photograph, sound recording or other material, regardless of physical form or characteristics, made or received pursuant to law or in connection with the transaction of official business. Library and museum material made or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of 52754-46-03 STATE GOVERNMENT publications and of processed documents are not included within the definition of records as used in this chapter. 3. ‘State record” means: a. A record of a department, office, commission, board, or other agency, however designated, of the state government. b, A record of the state legislative assembly held by an agency. c. A record of any court of record, whether of statewide or local jurisdiction. d. Any other record designated or treated as a state record under state law. Source: S.L. 1961, ch. 333, § 3; 2011, ch, 430, rial Act: “Desirable And Practicable” For North § 1; 2015, ch. 180,'§ 2, effective July’, 2015. Dakota? 87 N.D.L.Rev. 825 (2011), Electronic Legal Mate- NOTES TO DECISIONS Record. Finding that the documents that the board received in response to discovery requested in an administrative proceeding foll within provi- sions dealing with government records was proper because gathering information was a step in the decision making process and was ‘considered public business. It was undisputed the board received the documents through dis- covery procedures in an administrative pro- ceeding that the board had authority to con duet. Energy ‘Transfer LP v. N.D. Private Investigative & See. Bd., 2022 ND 84, 973, N.W.2d 404, 2022 N.D. LEXIS 82 (N.D. 2022), 54-46-03. State records administrator. The chief information officer of the state or an individual designated by the chief information officer shall serve as the state records administrator, in this chapter referred to as the administrator. The administrator shall establish and administer in the executive branch of state government a records management program, which will apply efficient and economical management methods to the creation, utilization, maintenance, retention, and final disposition of state records. Cross-References. Central microfilm unit, administrator to es- tablish and operate, seeN.D.C.C. § 54-46.1-01 Souree: S.L. 1961, ch. 333, § 4; 1977, ch. 502, § 14; 1985, ch, 82, § 129; 1991, ch. 614, § 3; 1999, ch. 483, § 31 54-46-03.1. Transfer of records management functions authorized. (Repealed) Repealed by S.L. 1985, ch. 82, § 162. 54-46-04. Duties of administrator. ‘The administrator shall, with due regard for the functions of the agencies concerned: 1. Establish standards, procedures, and techniques for effective manage- ment of records. 2. Make continuing surveys of paperwork operations and recommend 52854-46-07 STATE GOVERNMENT 54-46-07. Records not to be destroyed or removed. All records made or received by or under the authority of or coming into the custody, control, or possession of public officials of this state in the course of their public duties are the property of the state and may not be mutilated, destroyed, transferred, removed, sold, or otherwise damaged or disposed of, i whole or in part, except as provided by law. Each state agency and political subdivision of this state shall notify the state records management adminis. trator of unlawful actions affecting records. Public records that have been unlawfully removed must be returned to the office of origin or to the state archivist. Source: 8.L. 1961, ch. 833, § 8; 2011, ch. 430, $2 Cross-References. Juvenile court records, authorization of de- struction, see N.D.C.C. §' 27-20-54, 54-46-08. Determination necessary for final disposition of records. Prior to the final disposition of any type or class of record, the administra- tor, after consultation with the official or department head concerned, the attorney general, the state auditor, and the state archivist, shall determine that the type or class of record has no further administrative, legal, or fiscal value and is subject to final disposition under section 54-46-08.1 or section 54-46-09. If a statute requiring retention of a record does not either provide a specific retention period or specifically provide that the record be permanently retained, the administrator, after completing the consultation required by this section, shall establish a specific retention period for the record. The admin- istrator shall annually survey the state agencies and shall order final dispo- sition under section 54-46-08.1 or section 54-46-09 of any records which have been determined to have no further administrative, legal, or fiscal value pursuant to this section, Source: S.L. 1961, ch. 333, § 9; 1971, ch. 612, $ 1; 1977, ch, 602, § 17; 1998, ch. 630, § 1 54-46-08.1. Preservation of records found to be archival resources. ‘The official or department head concerned and the state archivist shall review any records determined to be subject to final disposition under section 54-46-08. Any records found to be of permanent value for research, reference, or other use appropriate to document the organization, function, policies, and transactions of government must be transferred to the state archivist for preservation as archival resources. Source: S.L. 1973, ch. 431, § 1; 1977, ch. 502, Cross-References. § 18. State archivist, see N.D.C.C. eh, 55-02.1 530RECORDS MANAGEMENT 54-46-12 Law Revie rial Act: “Desirable And Practicable” For North Article: The Uniform Electronic Legsl Mate- Dakota? 87 N.D.L.Rev, 325 (2011). 54-46-09. Destruction of nonrecord materials and nonarchival resources. Nonrecord materials or materials not included within the definition of records as contained in this chapter may, if not otherwise prohibited by law, be destroyed at any time by the agency in possession of such materials without the prior approval of the administrator. The administrator may formulate procedures and interpretation to guide in the disposition of nonrecord mate- rials. Records determined to be subject to final disposition under section 54-46-08 and not found to be of value as archival resources under section 54-46-08.1 must be destroyed by any suitable means as determined by the administrator. Source: §.L, 1961, ch. 393, § 10; 1977, ch, 602, 519. 54-46-10. Rules and regulations. The administrator shall promuigate such rules and regulations as are necessary or proper to effectuate the purposes of this chapter. Source: SL. 1964, ch, 983, § 11 54-46-11. Annual report. The annual report of the information technology department made in accordance with section 54-59-19 must describe the status and progress of programs established pursuant to this chapter and must include the recom- mendations of the administrator for improvements in the management of records in the state government, Source: §.L. 1961, ch. 333, § 12; 1963, ch. 946, 1985, ch. 82, § 130; 1995, ch. 350, § 51; 2007, § 68; 1973, ch. 403, § 52; 1975, ch 466, § 55; ch. 492, § 1 54-46-12, County, city, and park district records — Uniform program established by administrator. The administrator shall establish a uniform program of standards, proce- dures, and techniques for the effective management of county, city, and park district records. All county, city, and park district offices, departments, and agencies may establish, utilize, and maintain the uniform program prescribed by the administrator. Source: SL. 1963, ch. 354, § 1; 1977, ch, 502, § 20; 1989, ch. 298, § 8; 2019, ch. 458, § 2, effective August 1, 2019. 53154-46-13 STATE GOVERNMENT 54-46-13. Rules for state and human service zone records — Adminig. trator to adopt. [Effective through August 31, 2022] The administrator shall adopt rules in accordance with chapter 28-32 for state and human service zone records. The rules adopted by the administrator must be consistent with records retention requirements imposed by federa} law with respect to those records. The administrator, prior to adoption, amendment, or repeal of rules concerning state and human service zone records, shall consult with the executive director of the department of human services. Rules for state and human service zone records — Administrator to adopt. [Effective September 1, 2022] The administrator shall adopt rules in accordance with chapter 28-32 for state and human service zone records. The rules adopted by the administrator must be consistent with records retention requirements imposed by federal law with respect to those records. The administrator, prior to adoption, amendment, or repeal of rules concerning state and human service zone records, shall consult with the executive director of thé department of health and human services. Source: S.L. 1965, ch. 189, § 2; 1977, ch. 502, effective January 1, 2020; 2021, ch. 352, § 495, § 21; 1993, ch. 541, § 1, 2019, ch. 391, § 131, effective September 1, 2022, 54-46-14, Continued confidentiality of records. The head of an agency may provide, and the administrator may receive, any record necessary to effect the purposes of this chapter without regard to the confidential or secret nature of the information in the record. However, the administrator and agents or employees of the administrator involved with records management under this chapter are subject to the same restrictions and penalties regarding the dissemination of the information as are the personnel of the ‘agency involved. Source: S.L. 1991, ch. 614, § 5.Machment of wro238 Z_PageS North Dakota House of Representatives STATE CAPITOL ‘Legislative Assembly Epes BISMARCK, ND 58505-0360 Representative Corey Mock COMMITTEES: District 18 ‘Appropriations PO, Box 12542 Grand Forks, ND §8208-2542 ©: 701-732-0085 [email protected] February 6, 2023 Chaiman Scott Louser and House Industry, Business and Labor Committee North Dakota State Capitol ~ Room 327C Testimony in Support of HB 1528 ~ Retention of Email and Review of Records Chairman Louser and Member of the House IBL Committee, We are nearly one month away from the News Leaders Association annual Sunshine Week — March 12-18, 2023 = which is an initiative to promote open government. Open records are anything but a foreign concept to the state of North Dakota. Our constitution enshrines the right in Article XI, Section 6: "Unless otherwise provided by law, all records of public or governmental bodies, boards, bureaus, ‘commissions, or agencies of the state... shall be public records, open and accessible for inspection during reasonable office hours.” North Dakota Century Code expounds on this right within § 44-04-18: defining “reasonable office hours” as all regular office hours; requiring the name and contact information of a responsible person if regular office hours do ‘not exist; limiting costs that may be charged for open records requests; explicitly stating the “[alutomation of public records must not erode the right of access of those records”; ete.Our commitment to openness, transparency, and proper accounting of records are features that highlight the strength of our democracy. Decades — if not generations — have passed with the public maintaining relative confidence that our laws and policies preserve public records and ensure unabridged public access. It took the untimely death of one man — an institution upon himself ~ to expose a microscopic opening in our laws that would rupture into a chasm of confusion once exploited, On the moming of Friday, January 28, 2022, North Dakota's longest tenured Attorney General, Wayne Stenehjem, was found unconscious in his home. By that evening, worry turned to sorrow as news spread that our widely beloved, lifelong public servant, colleague, and friend had passed away. Little did we realize how much would be lost with his passing ~ especially in the days that followed. ‘Attached to my testimony is a timeline of events, assembled by the office of the Attorney General, and published as part of an ongoing investigation fram Rob Port and Forum Communications. effor 1 lengths of one staff member to systematically conceal and destroy all messages, documents, memories, and institutional context that was amassed over 7.697 days in office. In late March, it was announced that Troy Seibel would be replaced as Deputy Attorney General which led to Mr. Seibe''s resignation. On April 27m, Mr. Seibel's email account was transferred to another employee's computer and, approximately one month later, all items associated with Mr. Seibel's account were ordered to be deleted without clear authorization, ‘Around July 5, 2022, the individual who coordinated and ordered final destruction of all messages and files on accounts of Mr. Stenehjem and Mr. Seibel confirmed her actions and was unable to articulate any authority for the most recent disposition of accounts. She resigned on July 15, 2022; no charges for criminal Tampering with Public Records (or other potential criminal violations) have been filed by the Burleigh County States Attorney. ‘There is no debate regarding the impropriety of these actions. They are counter to the public's interest, erode trust in our government institutions, and tarnish the epilogue of a public official following his 44 years of legislative and executive service. The question of legality, however, remains open and seemingly unanswered We cannot change the past. Despite admirable efforts, lost messages and files are beyond recovery. But with the wisdom of hindsight, we can remove ambiguity for the future,HB 1828 — which will require amendments from its introduced version — seeks to: * Codify and clarify existing definitions of “records” as they related to email, + Permit our records management administrator to refer findings of noncompliance to the state auditor or attorney general, (when needed); + Require agency heads to cooperate with our records management program and resolve findings of noncompliance as indicated in policy evaluations; + Require agencies to retain email and files stored on affliated storage programs for at least one year; + Require policies and outline foundational actions that must be taken to review and retain records upon certain triggering events of state employees, agency heads, and public officials. Attached to my testimony is a draft amendment in context (23.1015.02002 draft) with HB 1528 as filed. These amendments are not final: they require additional refinement and review by Legislative Council. North Dakota Information Technology Department (NDIT), the Office of the Attorney General (AG), and Human Resource Management Services (HRMS) have been consulted and continue to contribute to the final product of this legislation to ensure any statutory changes are primed for implementation and success. | will walk through each section as outlined in the draft amendment: Section 1 Updated our legal definition of “record” to include any electronic mail or communication that includes official business "activities, policies, or decisions that provide administrative, operational, fiscal, historical, audit, or business value.” This also clarifies that “nonbusiness related or draft electronic messages" are not considered records. Under current law, email is not considered a record, but information contained in an email may be classified as @ record if it contains information in connection with the transaction of official business. This affirms that email is @ record and subject to applicable record retention policies if it contains information related to official business. Section 2 Updates the duties of our records management program administrator by removing “paperwork” as an operational qualifier and allows the administrator discretion to report noncompliance to the state auditor and/or attomey general, if necessary,Section 3 Updates statutory duties of an agency head to include cooperation with the records management program administrator regarding noncompliance findings. Section 4 54-46-08(2) contains draft language to require each agency to maintain a default backup of email (e.g. Outlook) and files stored on an affliated storage system (e.g. OneDrive) for at least one year. This archival storage solution is provided by our existing office productivity vendor (Microsoft) and the intent of this default backup setting is attainable within our licensing parameters, A default backup of one year is specifically required for all users with supervisory or management responsibiliies. ‘This does not preclude agency or IT policies from expanding the service to all employees; intended to provide risk-tolerant flexibility for employees with minimal IT product needs. Language on page 3 lines 23-25 is not intended to serve as an alternative method of records retention, nor a replacement of existing records management practices. Records — including email containing official business information as defined in Section 1 ~ are always to be processed and retained as required by law and policy. An extended backup of our cloud-based email solution provides added insurance against mishandled records or prematurely deleted files. ‘Additional note: proposed language was added as NDCC § 54-46-08(2) because it governs records management for all executive branch offices and agencies. NDCC § 54-59 ~ NDIT governing statutes — may also be amended for this provision, but the attorney general's office and ND University System are ‘exempt from using NDIT as an email service provider. ‘Struck-through language in red beginning on page 3 line 25 and ending on page 4 line 5 remove original language in HB 1528. Further consultations have rendered this language unnecessary as we are accomplishing thecintent of the bill with new language proposed by the amendment. ‘Administrative hold standards begin on page 4 line 6, Administrative hold, as used in HB 1528, means the indefinite retention of all records, accounts, messages, documents, files, or other material assigned to that employee until proper review, processing, and retention (as necessary) is completed.54-46-08(3a) * Requires agencies to develop policies that outline who assume ownership of any employee account upon their departure, + Requires agencies to place accounts of employees in a supervisory position or above on an administrative hold upon a triggering event: © Termination; © Administrative leave: © Resignation / separation without notice; © Death; © Other event deemed necessary by that agency 54-46-08(3b) + Requires administrative holds for supervisory employees to remain in place until accounts and files, have been reviewed and processed by the agency head or the agency's designated records manager. 54-46-08(3c) + Requires administrative holds for agency heads, state officers appointed by the governor, or elected members of the executive branch (temporarily omitted from this draft) to remain in place until accounts are reviewed by the state archivist (for historical preservation purposes outlined in 54-46-08.1) and the appointed successor. 54-46-08(3d) + Employee account is defined as physical and electronic files, communications, attachments, and other information stored in an employee email or digital storage account. + Successor may not be interpreted as an individual acting in the successor's position temporarily before an appointment has been made per 44-02-03,Abtachnent F SF ages North Dakota House of Representatives Legislative Assembly pean cola BISMARCK, ND 58896.0360 Representative Corey Mock COMMITTEES: District 18 ‘Appropriations PO, Box 12542 Grand Forks, ND 58208-2542 ©: 701-732-0085 [email protected] March 23, 2023, Chair Kristin Roers and Senate State and Local Government Committee North Dakota State Capitol ~ Room JW216 Testimony in Support of HB 1528 (Email Retention) Chair Roers and Members of the Senate State & Local Government Committee, Last week was national Sunshine Week, an annual initiative to promote open government organized by the News Leaders Association, Open records are anything but a foreign concept to the state of North Dakota. In fact, our constitution enshrines the right in Article XI, Section 6; “Unless otherwise provided by law, all records of public or governmental bodies boards, bureaus, commissions, or agencies of the state... shall be public records, open and accessible for inspection during reasonable office hours.” North Dakota Century Code expounds on this right within § 44-04-18; defining “reasonable office hours" as all egular office hours; requiring the name and contact information of a responsible person if regular office hours do not exist; limiting costs that may be charged for open records requests; explicitly stating the "[alutomation of public records must not erode the right of access of those records"; etc.Cur commitment to openness, transparency, and proper accounting of records are features that highlight the strength of our democracy. Decades ~ if not generations ~ have passed with the public maintaining relative confidence that our laws and policies preserve public records and ensure unabridged public access. Itwas the untimely death of one man — an institution upon himself ~ that exposed a microscopic opening in our laws that would rupture into a chasm of confusion once exploited. On the moming of Friday, January 28, 2022, North Dakota's longest tenured Attomey General, Wayne Stenehjem, was found unconscious in his home. By that evening, worry turned to sorrow as news sproad that cour widely beloved, ifelong public servant, colleague, and friend had passed away. We are stil realizing the consequences of those events, (For example: an extended, separate conversation can and should be had about succession planning at all levels of goverment.) One discovery that emerged was the apparent ability for email ~ along with any information and broader context for past and current state business — to be erased. Because email itself is not classified as a “record,” any statutory obligations to review or retain items of this nature are ambiguous, at best. Worsening the perception of these events was the fact that orders to dispose of email were given without clear or validated authority. Those complying with these requests were right to do so; challenging or refusing these work orders could be interpreted as insubordination. Was the bulk disposition of email and other electronic files a legal action? That question remains open and seemingly unanswered, Moreover, any ability to assuage concems of misconduct were lost when Mr. Stenehjem's user accounts were deleted on Monday, January 31, 2022 (and unrecoverable 30-days later) We cannot change the past. But we have the ability and responsibility to lear from our experiences. HB 1528 is our opportunity to remove ambiguity and hopefully prevent similar circumstances from ever happening again. Before | walk through the bill, I want fo express my gratitude for several agencies (and notable staff members within each) who continue to hone HB 1828. Responsible public policy is a team effort; the work of those MVPs and their respective teams deserve to be acknowledged North Dakota Information Technology Department: Greg Hoffman, Cralg Felche, Aimee Bader Human Resource Management Services / OMB: Molly Herrington, Lynn Hart, Hannah Wolf Office of the Attomey General: Mary Kae Kelsch, Claire Ness Legislative Council: Levi Kinnischtzke, Liz FordahlAmendments for HB 1528 have been drafted and submitted with my testimony, For the purposes of this walkthrough | will be referencing version 23.1015,03001m. Generally speaking, HB 1528 seeks to: ‘ Coudify and clarify existing definitions of records” as they relate to email, * Permit our records management administrator to refer findings of noncompliance to HR, state auditor, or attorney general (when applicable); + Require agency heads to cooperate with our records management program and resolve findings of noncompliance, as indicated in policy evaluations; ‘+ Require agencies to retain a retrievable version of email and cloud-based enterprise files for @ minimum of two years; + Codlfy the existence of records management training programs; ‘+ Require automatic “freezing” of records, files, and artifacts for the purposes of review and management upon certain triggering events of supervisory positions, agency heads, and elected officals. Section 1 Updates our legal definition of record" to include electronic mail or communication that includes official business “activities, policies, or decisions that provide administrative, operational, fiscal, historical, audit, or business value.” This also clarifies that “nonbusiness related or draft electronic messages” are not considered records, Under current law, email is not considered a record, but information contained in an email may be classified as 4 record if it contains information in connection with the transaction of official business. This section codifies existing record management policies and removes ambiguity within statute. Section 2 Updates duties of our records management program administrator. This section requires that all state agencies maintain data contained in email and files managed in our cloud-based, office productivity software (our current vendor / product is Microsoft Office 365) for at least two years. ‘Additionally, the records management program administrator shall develop a records management training program, which currently exists. This codifies an existing program. noncompliance is found, changes proposed give the records administrator the ability to report findings with recommended actions to+ The agency itself + HRMS for review of any further disciphi ary or corrective action; State auditor, which may include noncompliance findings in the agency's audit or provide in a report to LAFRG; + Attorey general, to determine appropriate action, including prosecution or referral to HR for noneriminal action Section 3 Updates statutory duties of an agency head to include cooperation with the records management program administrator regarding findings of noncompliance. Section 4 Requires each agency to maintain a default backup of email 1g. Outlook) and files stored on an affiliated cloud- based storage system (e.g. OneDrive) for at least two years. This is statutorily consistent with email retention University Systam (NDCC 15-10-44). This archival storage oN student ace equi of solution is an existing feature provided by our current office productivity vendor (Microsoft) and is attainable with ‘our current licenses. A default backup of two years is specifically required for all users with supervisory responsibilities. This does not preclude agency or IT policies from expanding that requirement to all employees. Keep in mind: this is not an alternative to records retention policies. A two-year default archive ensures retrievability, needed. All existing records management policies, including record retention schedules, must stil be followed. Beginning on line 11 of page 4: + Each agency must develop a custody of ownership policy upon employee departure. + For employees with supervisory responsibilities, all accounts associated with that employee must be placed on hold (defined on line 7 page 5) if one of the following actions occurs: © employee is involuntarily terminated; ©. employee is placed on administrative leave; «© employee resigns or departs without notice; © employee passes away; or ©. other event(s) specified by the agency+ Accounts of supervisory employees that are on hold must be reviewed by head oftheir agency, a records manager, or other designated employee (e.g. diract supervisor + Ifahold is triggered for an agency head, appointed offical, or state elected officiel, accounts are on hold Lntil they can be reviewed by the appointed successor and state archivist (consistent with 64-46-08.) + Terms for employee account, employee's successor, and “on hold” are defined on the top of page 5. House Industry Business and Labor committee felt it was necessary for these changes to go into effect upon enrollment, Understanding the work needed to implement some policies, Section 5 was added to delay the effective date until the beginning of the fiscal year (July 1, 2023.) There may be additional requosts for archival exemptions related to email that contain malicious or highly sensitive content, We are exploring those considerations with agency partners; if language can be developed that is consistent with the intent of HB 1528 and logistically feasible, | will be glad to work with the committee to develop that amendment, Thank you for your time, effort, and attention.