DISCOVERY PROCESS MUST BE USED TO OBTAIN RECORDS FOR PENDING LAWSUIT

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April 16, 2019


Request:  Did the law enforcement agencies violate the open records law by denying requests for records?

Conclusion: The attorney who represents a plaintiff in a pending civil lawsuit made identical requests to the ND Highway Patrol, Cass County Sheriff’s Office, Bismarck Police Department and Mandan Police Department, for records relating to the departments’ involvement in the response to the Dakota Access Pipeline protests in November 2016. The agencies all denied the requests. The complaint names individuals with the Highway Patrol, Morton and Cass County Sheriff’s offices, as well as a “John Doe” law enforcement officer, and details the involvement of the law enforcement officers and sheriffs for actions they undertook while acting under color of law and employed by the public entities. The open records law does not allow a party involved in litigation to circumvent the discovery process when seeking records from a public entity. The law enforcement agencies did not violate the law by denying requests for records relating to ongoing litigation involving the entity and the litigant or an agent of the litigant.

Opinion 2019-O-06

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