Mar. 15—GRAND FORKS — When two elected officials casually text each other about public business on their personal phones, does their exchange qualify as an open record? What if it happens during a public meeting?

Two attorneys who represent North Dakota and Minnesota newspaper associations are adamant those exchanges are open to public scrutiny, based on their respective states’ laws.

“Some city councils require that you do everything over a government — or city — laptop or something,” said Jack McDonald, an attorney who works closely with the North Dakota Newspaper Association. “But even if they are doing this on their private laptops, or private telephones, they’re still public records if they deal with public business.”

To get an idea of what, if anything, Greater Grand Forks public officials are texting about — particularly during meetings — the Herald reached out to four public entities and made open-records requests. The effort came in conjunction with the Herald’s coverage of Sunshine Week, a national initiative started in 2005 by the American Society of News Editors.

The requests, submitted in early February, covered text messages sent and received by various public officials during — as well as one hour before and one hour after — recent public meetings. The requests included Grand Forks City Council, East Grand Forks City Council, Grand Forks County Commission and Grand Forks School Board members, as well as other public employees who frequent public meetings.

The process went smoothly — no entity denied or challenged the record requests. McDonald said that is typical.

“My experience has been, over the years, that most of the people comply,” he said. “I think most people are honest and well-meaning. They try to do what they’re supposed to do.”

Minnesota and North Dakota allow fees for records requests based on supply and labor costs, but none of the parties requested payment from the Herald.

“I’m not sure it’s going to pass to completely end it. … I am thinking at a minimum 1 to 1 exchange. I think I can get that to pass,” Grand Forks City Council member Danny Weigel texted during a council meeting on Feb. 5,

presumably referring to a proposal to end the city’s needle exchange program.

“Better than the way it currently is,” responded County Commission member Mark Rustad, who was in the audience that night.

That conversation is an example of some of the back-and-forth that occurs on cell phones during public meetings, according to the Herald’s Sunshine Week research.

During a Feb. 6 County Commission meeting, Commissioner Kimberly Hagen texted Rustad: “I don’t have a copy of what you are looking at. Is there a big cost increase?”

Rustad responded, noting the figure was $280,000.

“Woof,” Hagen texted back. “That’s a lot of money.”

These conversations, though between public officials, regarding public business and occuring during public meetings, do not violate open-meeting laws, according to Grand Forks County State’s Attorney Haley Wamstad.

“It’s my legal opinion that that would not be a violation of open-meeting laws, because there would need to be a quorum present,” Wamstad told the Herald. “There needs to be two elements: it needs to be public business, and it needs to be a quorum of the group.”

For example, three out of the five Grand Forks County commissioners would need to be texting each other about public business in order to violate open-meeting laws.

Though texting about public business during a public meeting is not illegal, McDonald believes the exchanges violate the spirit of open-meeting laws.

“When you have a public meeting, the public is supposed to be able to attend and know what’s going on,” he said. At times, he added, “we make that difficult, whether it’s by no microphones, by whispering or passing notes to each other.”

In both North Dakota and Minnesota, open-meeting laws generally require public access to official public discussions relating to the people’s business. Mark Anfinson, an attorney who works closely with the Minnesota Newspaper Association, said it’s a common misconception that Minnesota’s open-meeting law only protects public access to the decision-making parts of meetings, such as motions and votes.

“That’s not true at all,” he said. “The open-meeting law requires public access to every discussion of anything within the jurisdiction of the public body, if there’s a quorum involved.

“The whole purpose of the open-meeting law is to allow the public to observe the deliberations and discussions about these issues,” Anfinson said. “If they’re texting each other, pretty much by definition, the general public isn’t privy to those exchanges.”

However, he believes that when it does happen, it’s due to a basic lack of awareness.

“It doesn’t strike them, necessarily, that this is improper,” he said. “We all text so much, so routinely, that they just think that it’s no big deal.”

Beyond open-meeting laws, private conversations about public business can be subject to open-records laws regardless of whether they take place during a meeting.

North Dakota states that “except as otherwise specifically provided by law, all records of a public entity are public records, open and accessible for inspection …”

Minnesota law states that “all government data collected, created, received, maintained or disseminated by a government entity shall be public unless classified by statute, or temporary classification pursuant to section 13.06, or federal law, as nonpublic or protected nonpublic, or with respect to data on individuals, as private or confidential.”

An example of private conversations being subject to open-records laws is when, shortly after the Feb. 5 Grand Forks City Council meeting, Councilman Kyle Kvamme texted Councilman Bret Weber: “I’m not happy, I would say most on the council aren’t happy, but I think that’s a sign of a compromise. I do think with more data we can actually understand how much we’re doing to help and with that data understand how the program needs to change. We didn’t change the rules on if someone walks up with no needles which I think is important to clarify(.) I still think we need to serve our community and these are the people that need to get those interactions with our Public Health.”

Many texts are general and innocuous. For example, during an East Grand Forks City Council meeting, city employee Megan Nelson texted Councilman Dale Helms: “Sorry. Can’t get sound to work.”

Helms’ response: “We just finished, which might be part of the reason you can’t get it to work now.”

And just after a recent Grand Forks School Board meeting, board President Amber Flynn received the following text from an unnamed sender: “Do you want me to give award to secretary? Or is it done already?”

Rustad, who is in his first term on the County Commission, said there is no ill intent with during-the-meeting texts.

“It really is innocent enough,” he said. “We may have a member on Zoom who needs clarification on what’s going on.”

That was the case with his texts with Hagen during the early February meeting, he said.

East Grand Forks City Council members have city-issued laptops and tablets.

Grand Forks City Council members have the option to utilize city-issued technology, including laptops, tablets and cellphones. Both councils provide city email accounts that members use for official business.

But what if a council member is simply asking a spouse about dinner plans? That’s not a public record, according to McDonald.

“The text has to pertain to public business,” he said.

Both McDonald and Anfinson noted, though, that with texts especially, requests to access information rely on faith and trust that the elected official will entirely fulfill the request.

“You ask for any kind of a government record, and you’re pretty much taking the government’s word that you’ve got everything,” Anfinson said. “There’s no way to independently verify that you have. But with texts, and social media messaging, that’s even harder.”

McDonald said that if a requester knows something exists, but it wasn’t received during an inquiry, it’s easy to know the request wasn’t adequately fulfilled.

“But oftentimes, you don’t know,” he said.

Following the Herald’s request in February, the East Grand Forks City Council had the quickest turnaround time of completing the request — 50.75 hours, though there was only one text exchange. The lengthiest turnaround time was from the Grand Forks School Board, which took approximately 16 days to fulfill the request. It was delayed in part due to a board member being away, but also due to a misunderstanding about the request itself.

The Grand Forks City Council took approximately eight days to fulfill the request and the Grand Forks County Commission took 51.77 hours.

Some constituent names were redacted from text messages. Some public officials’ names were redacted by one source, but not another, though they came from the same group text exchange.

The definitions of open/public records are very similar in North Dakota and Minnesota; both states generally consider information that’s in a public entity’s possession — and related to public business — to be accessible.

North Dakota law defines public business as the performance of governmental functions and use of public funds. Therefore, texts among public officials, as well as between public officials and constituents, are not inherently public. But they may be, based on content, according to Anika Lockhart, an assistant attorney general who deals with open records and open meetings.

Anfinson, the Minnesota attorney who works with his state’s newspaper association, said the same rules apply in Minnesota. Texts sent or received by public officials are subject to public records laws if they relate in any way to official duties.

Though, in both states, there are a number of exceptions.

“You can’t assume that every such text will be public. As with all government records, it will depend on the specific content,” Anfinson said.

This is why it’s necessary, he said, to call attention to what open records and meetings mean — as well as to point out potential violations.

“I think calling attention to it, and shining the light, will help reduce (violations) quite a bit,” Anfinson said.

How often this happens, and who’s doing it, can be difficult to determine. In addition to record request limitations, there are limits on the repercussions public officials can face if they’re found to have violated open-records laws.

“Personally, I would rather have us work and try to cooperate,” McDonald said. “And, frankly, a lot of the problems come up with people that aren’t deliberately doing (wrong) — they just don’t understand what they’re supposed to do.”

The Herald’s Matthew Voigt and Joshua Irvine contributed to this report.