Energy Transfer, LP v. North Dakota Private Investigative and Security Board

Court: North Dakota Supreme Court

Date Filed: March 4, 2022

Update: On April 28, 2022, the North Dakota Supreme Court affirmed the district court’s ruling in favor of The Intercept, holding that the records are subject to disclosure.

Background: In October 2020, Alleen Brown, a journalist for The Intercept, filed a request under North Dakota’s public records law seeking documents related to the Dakota Access Pipeline. Brown specifically asked the North Dakota Private Investigative and Security Board, which regulates the state’s private investigation and security industries, for records it had received from TigerSwan, a third-party private investigative firm, detailing surveillance of individuals protesting the pipeline.

The board denied the journalist’s request, citing pending litigation between the board and TigerSwan over an agreement the private investigative firm had reached in 2016 with Energy Transfer, the operator of the Dakota Access Pipeline. That contract allegedly shielded from disclosure documents and information related to TigerSwan’s work for the pipeline project.

The Intercept sued the board and the news organization’s case was merged with the dispute between the board and the private firm. The news outlet argued — and the board agreed — that the requested documents are public records under North Dakota’s Open Records Act and therefore should be subject to disclosure. But Energy Transfer and TigerSwan argued that the documents, which were given to the board inadvertently, are not public records and that they should be kept secret.

In December 2021, a district court in North Dakota sided with The Intercept, holding that the disputed documents were indeed subject to disclosure under the Open Records Act. The court also held that agreements like the one reached between Energy Transfer and TigerSwan can’t be used to evade North Dakota’s public records law.

Energy Transfer then appealed to the North Dakota Supreme Court.

Our Position: The North Dakota Supreme Court should affirm the district court’s ruling.

• The Private Investigative and Security Board received the records at issue in connection with its official government functions, rendering them “public records” under the plain text of North Dakota’s Open Records Act.
• Contracts cannot be used to circumvent public records statutes.

Jack McDonald of Wheeler Wolf Law Firm represented the Reporters Committee, North Dakota Newspaper Association and Forum Communications Company in this friend-of-the-court brief.

Quote: “[T]he taxpaying public has a right to know what the government is doing with public funds. The scope of the ORA, accordingly, covers the full scope of governmental activities. Whether any particular decision is good, bad, lawful, or unlawful is beside the point; the public has a right to records regarding that decision, unless those records are specifically exempt.”

Related: In 2020, the Reporters Committee and 19 media organizations filed a friend-of-the-court brief urging the Illinois Supreme Court to rule that a records-destruction provision included in a collective bargaining agreement between the city of Chicago and the Fraternal Order of Police violated Illinois’ public records law and other state statutes. The Illinois Supreme Court later held that the agreement did indeed violate an “explicit, well-defined, and dominant public policy” in the state of Illinois.