LA SEVAREID NEWSGROUP - MARK E. NELSON REQUEST FOR OPINION LETTER OF ND AG STENEHJEM RE CITY OF FARGO RECORDS REQUEST
(first, the American "Law" School joke: http://lawschooljoke.blogspot.com/ not part of the request for opinion - bet they are working overtime on this one............ naw)
LA SEVAREID NEWSGROUP - MARK E. NELSON REQUEST FOR OPINION LETTER OF ND AG STENEHJEM RE CITY OF FARGO RECORDS REQUEST, SENT BY CERTIFIED MAIL RETURN RECEIPT SERVICE PAID:
September 2, 2017
Mark E. Nelson
LA Sevareid Newsgroup
P.O. Box 10745
Fargo, ND 58106
Honorable Wayne Stenehjem
Attorney General of North Dakota
600 East Boulevard Avenue
Department 125
Bismarck, ND 58505
Subject: Request for Opinion of the Attorney General regarding the legality, directness, completeness and responsiveness to access the records actually requested in my Open Records request of August 7, 2017 to the City of Fargo, North Dakota. Also costs.
Dear Mr. Stenehjem,
To make my request as straightforward and simple as possible I will simply use as doctrine the plain words defining records from the Office of Attorney General 2 page Open Records Guide (8-17):
“DEFINITION OF RECORD “Record” includes all recorded information regardless of physical form (e.g. paper, e-mail, computer file, photograph, audiotape or recording, video, text message, etc.) that has a connection with how public funds are spent or with the public entity’s performance of its governmental functions or its public business, regardless of format or location. Minutes, memos, reports, outlines, notes, employee salary and job performance records, contracts, telephone records, and travel vouchers are all OPEN records and must be provided upon request.”
My request of August 7, 2017:
To: City of Fargo, Mr. Erik R. Johnson, Mr. Mayor, Commissioners and other parties
7 August 2017
From: Mark Nelson
Subject: Records request (ND open records) regarding the Police Office of Internal Affairs Report (SGT Crane and et al) into the conduct of Officer David Boelke
Good Morning
I request the above report in full and complete and in no case any more closed or redacted than for instance the report regarding Officer Lieutenant Lyle Skuza as disclosed and on the internet by the Star Tribune:
Assuming that disclosure has now been made to Forum Communications and KVLY and that disclosure has been in electronic form, I request it in electronic readable in email communication format and at no charge. KVLY has posted online the personnel file and Vogel Law firm data dump, so those documents are not part of this request.
Further request records made by each and each and every person in the shift briefing believed to be 7 April 2017, whether in the possession of the city or the individual.
Further request records by police supervisory staff relating to the conduct at shift meeting believed to be 7 April 2017, whether in the possession of the city or individual.
Further request records made by Commission or staff related to Officer Boelke conduct and utterances, whether in the possession of the city or individual. All in readable in e-mail electronic form.
Individuals will be cognizant if they have created a related record so search time takes a very small amount of time. If Forum or KVLY or others have already requested the last three records then it already done.
Thank You
Sincerely,
Mark Nelson
The response of the City of Fargo by Assistant City Attorney Ms Nancy Morris of August 8, 2017:
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Aug 8
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Dear Mr. Nelson,
I am writing in response to your Open Record Request, below. All of the records except the materials relating to the shift briefing incident have been previously produced and will be made available on a flash drive for you. The April 7 report file will be located and redacted, and included on the same flash drive for your retrieval. The estimated cost for these records is $75. The flash drive is $10, unless you want to deliver a flash drive for use. Please advise if you wish to obtain these records, and make payment directly to my office in the amount of $85.
Thank you,
Nancy
On August 17, 2017 at a public event Mayor Timothy Mahoney and I had a brief conversation regarding my Open Records request, he stated he would look into it. I briefly explained that my request included - paraphrasing - the three sentences in my request - that begin “Further request”.
My e-mail to the City dated August 23, 2017:
Dear Hon. Mayor Mahoney, and Commissioners Piepkorn, Gehrig, Grindberg, Strand
Thank You Mr. Mayor for appearing and speaking at the Cass County Democratic NPL picnic at Rheault Farm the evening of Thursday August 17, 2017. Thank You for speaking with me and stating you would look into my open records request of August 7, 2017. I stated that I found Ms Morris’ response to be less than specific - indirect.
My request remains as written, as submitted, before the Fargo City Commission. It is on record as being sent to Mr. Johnson and Commission.
The method to find any such record responsive is not a search of the city’s email servers.
It is to simply ask those in the day shift meeting April 7, 2017, (in person or e-mail) the police supervisory staff and Commission and staff whether they have created a record (they will know and not have forgotten) - whether in the possession of city or individual; then simply request they respond legally to my records request and turn it over for release.
Extrajudicial redactions and blanket exemption claims in the Moszer/Schumacher matter are more than troubling - referring most especially to the Office of Attorney General Wayne Stenehjem/BCI and my Open Letter to Governor Burgum dated and e-mailed Sunday August 20, 2017, asking he demand the resignation of Mr. Stenehjem:
The utterances of Officer Boelke and the perceived threat felt by the police and/or addressed at others, and all records created are the clear right of the public to know.
If the request as before Commission will not be granted, simply, promptly, in whole - (with actual legal redactions as to SS #s etc understood and stated in every instance so redacted) and economically, I ask that the matter be noted prior to deadline on Thursday August 24, 2017; for reading by the clerk of my request in whole, the response of the city (Ms Morris reply) then discussion in and of the Commission at the next scheduled meeting Monday August 28, 2017 and a final public vote be taken on the request.
I will plan to appear at Commission meeting Monday August 28, 2017 if the open records request is not agreed to in the whole as submitted August 24, 2017 and the matter must be noted for discussion and vote. It is understood that it would take several business days to inform employees, police supervisory personnel and Commission and staff to comply, assemble records and disclose in whole. .
Thank You,
Sincerely,
Mark E. Nelson
LA Sevareid Newsgroup as a public necessity for unreported news and a civic duty
On the morning of Thursday August 24, 2017, I visited the Fargo City Commission Offices and spoke to Ms Kember Anderson, Executive Assistant to the Commission, who stated she had received my e-mail. Ms Anderson stated that it had been forwarded to the City Attorney, and likely it would be Ms Morris who would respond. Ms Anderson stated that the matter would not be a matter that the Commission would vote on. Ms Anderson listened as I reiterated my three “Further request” requests as contained in the August 7, 2017 request from me.
My e-mail communication to Ms Morris et al of September 1, 2017:
To: Ms Nancy Morris, Deputy City of Fargo Attorney, Law Offices of Mr. Erik R. Johnson, Attorney for the City of Fargo, ND 505 Broadway N # 206, Fargo, ND 58102
From: Mark E. Nelson, LA Sevareid Newsgroup, P.O. Box 10745, Fargo, ND 58106
Subject: My request for records under the North Dakota Open Records Statutes reference Officer David Boelke sustained misconduct finding regarding day shift briefing April 7, 2017, as written and submitted. Public need for knowledge of specific utterances and all records created by witnesses to the meeting, Police supervisors records created and Records created by Commission and staff; all these records whether in the possession of the city or the individual creator of any such record as requested.
September 1, 2017 - Friday
Dear Ms Morris,
In a face to face conversation with Ms Kember Anderson at the Commission Offices on the morning of Thursday August 24, 2017, she informed me that my latest e-mail was referred to your law offices for further comment.
Should a more on point, to my request, response be forthcoming, I would welcome such response.
If no further response is coming then I will appear at your offices Tuesday September 5, 2017, likely in the morning with the $75.00 and a datastick for the information stated in your response to me, I believe on August 9, 2017, responding to my request of August 7, 2017.
Given my definite intention to so appear and pay on Tuesday September 5, 2017, I request you inform SGT Crane to go ahead with whatever he is directed to do with the disclosure or lack thereof.
I ask that the disclosure be made, in full and as requested on Wednesday September 6, 2017 at your offices.
Given the apparent fact that the City of Fargo and I have differing viewpoints on what comprises my request and how to fulfill it most efficiently and economically; without a statement that my request will be fulfilled as requested,and actually fulfilled in total by September 6, 2017, I must prior to September 7, 2017, deliver upon the Offices of the North Dakota Attorney General Mr. Stenehjem a request for an opinion as to whether the City of Fargo has broken the open records law, in this matter. Thirty days I believe is the timeframe to to ask for an opinion of the Attorney General, therefore such request for opinion will be delivered upon the Office of the ND Attorney General no later than the afternoon of September 5, 2017.
I appreciate the comment of Dr Mayor Timothy Mahoney to me the late afternoon of August 17, 2017 at Rheault Farm, that he would look into the matter. Thank You.
Sincerely,
Mark E. Nelson
(note her response referred to above was August 8, 2017)
The e-mail response of Ms Morris to me September 1, 2017:
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1:36 PM (8 hours ago)
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Mr. Nelson,
I am in receipt of your email, and have reviewed our previous correspondence. As previously stated, the file containing OPS Complaint 2017-005 has not been requested in a prior Open Record Request and that in order to respond confidential information must be redacted. These records will be produced in a timely manner upon receipt of the required payment. I will look for that on Tuesday 9/6, along with a data storage drive. I have asked Sgt. Crane to advise if he is not able to undertake this process by your requested response date of Wednesday, 9/7, and will communicate with you in that regard.
Regards,
Nancy Morris
Nancy J. Morris
Assistant City Attorney
505 N. Broadway, Suite 206
Fargo, ND 58102
(701)280-1901
Finally my Thanks to Ms Morris the afternoon of September 1, 2017, 3:34 p.m.:
Dear Ms Morris,
Thank You.
Sincerely,
Mark Nelson
Mr. Stenehjem and Attorney General Office staff, I believe that my “Further request” ….. whether in the possession of the city or individual ...sentences as written in my request of August 7, 2017 validly seek records covered by the Open Records statutes.
The City of Fargo has, in my view, neither denied those requests, cited exemptions why they, if they exist, would be exempt from disclosure, or stated that the “Further” records do not exist.
Of course my seeking said records does not necessarily mean such additional records were created. It is my impression that if that were the case, however, the City would have simply stated that to be a fact.
It appears clearly to me that the method of finding out if they do exist is to simply ask the personnel in question, whether they created a record and if so to turn it over to the City for review and subsequent disclosure. The City of Fargo, to the best of my knowledge, maintains no organized system of records.
A jarring, fruitless, complicated, expensive, time consuming search of the e-mail server of the City of Fargo IT computer logs appears not to be the path to take here; but simply ask those in the shift meeting April 7, 2017, the police supervisors and city commission and staff if they have created a record regarding the matter.
The utterances of the shift meeting April 7, 2017 alarmed Police personnel sufficiently to take them to mean that Officer Boelke apparently threatened members of the Police Force - and/or others - paraphrased.
This seems clearly to be a matter of records that are open and fitting the simple definition of the AG Open Records Guide of two pages (8-17): “ that has a connection with how public funds are spent or with the public entity’s performance of its governmental functions or its public business, regardless of format or location.” emphasis my own.
I am going to provide the City of Fargo - Ms Morris a 32gb datastick and while I specifically did not request the personnel file of Officer Boelke nor the Vogel law firm data dump - as it has been referred to, given the fact that it has been included in Ms. Morris response of August 8, 2017, I will accept them, unless it is determined that such 2 already disclosed documents are for instance two thirds of the costs assessed to me - in that case KVLY having published them and me having reviewed them would rather save money. I do not understand how the $75.00 was assessed plus data stick provided by me or $10.00 which - the cost of data stick portion makes sense.
I request your review of this matter and request your letter of opinion be issued upon the City of Fargo, with a copy to me.
I request that the matter of my three “Further request” sentences be responded to as simply and economically as possible by the City of Fargo (just ask people - they will remember if they created a record in this matter.) If you or your staff have any further questions of me, where I can perhaps provide greater clarity - please let me know - an e-mail address is lasevareidnewsgroup@gmail.com
I will deliver a copy of this to the Offices of Mr. Johnson and Ms Morris on, I plan, September 5, 2017, although she stated in her latest reply to me - September 6, 2017, so I am not absolutely sure as to whether their offices are taking off on September 5, 2017. In either case. And likely provided to other parties by e-mail, and posted to website. This letter I plan to place in the mail certified return receipt requested on Saturday September 2, 2017 - so I do not go over any 30 day deadline for a request for an Opinion Letter. Thank You.
Sincerely,
Mark E. Nelson
LA Sevareid Newsgroup
P.O. Box 10745
Fargo, ND 58106
Copy in paper form to City of Fargo, September 5th or 6th, 2017
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Mr. Erik Johnson received cash payment of $85.00 and the city's copy of the open request at his office Tuesday 5 SEP 17 and provided written receipt for both cash and request.
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Mr. Erik Johnson received cash payment of $85.00 and the city's copy of the open request at his office Tuesday 5 SEP 17 and provided written receipt for both cash and request.
