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Courts can rely on persuasive attorney general opinions

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NEWS MEDIA UPDATE   ·   NORTH DAKOTA   ·   Freedom of Information   ·   Jan. 11, 2007

NEWS MEDIA UPDATE   ·   NORTH DAKOTA   ·   Freedom of Information   ·   Jan. 11, 2007

Courts can rely on persuasive attorney general opinions

  • The Supreme Court ruled that a court did not improperly delegate its authority when it referred to an attorney general opinion in ruling against a public records requester.

Jan. 11, 2007  ·   The North Dakota Supreme Court has ruled that a lower court’s reliance on an attorney general’s formal opinion denying a public records request was permissible, but declined to say whether a police department erred in referring a requester to other agencies to obtain documents.

Roland C. Riemers argued that by calling an attorney general’s opinion “highly persuasive” and relying on it instead of an independent analysis, the lower court’s actions constituted an improper “delegation of judicial authority” and violated his constitutional right to due process.

It was Riemers who sought the opinion of Attorney General Wayne Stenehjem prior to filing his lawsuit. In April 2005 Riemers requested information from the Grand Forks Police Department related to a police officer shooting.

The police department released some information, but declined to release other documents, saying they were exempt under the state’s open records law. The police department also pointed Riemers to other agencies to obtain additional records he had requested.

The day after this partial denial, Riemers requested an opinion from the attorney general as to the legal soundness of the police department’s assertions under the public records laws. Stenehjem issued an opinion that supported the decision of the police department.

In June, Riemers sued the police department, challenging its open records policy. The lower court ruled against Riemers, finding a trial was unnecessary.

During the lower court proceedings, Riemers, who represented himself, missed two important court dates. Once he said he had not received notice and the other time he said a death in the family prevented his presence.

Following his loss, Riemers then appealed to the Supreme Court, which in November found against him, deciding the lower court “did not err in considering the Attorney General’s opinion in addition to its consistent independent analysis.”

The Supreme Court’s decision was based in part on procedural grounds. The court said that by failing to “provide any supporting reasoning or citations to legal authorities” in his appellate brief to the court, Reimers’ arguments constituted nothing more than “bare assertion” and could not support a reversal.

“Without support, Riemers’ contentions are without merit,” the court wrote.

The Supreme Court rejected Riemers’ argument that the lower court had improperly delegated its authority.

Riemers, who represented himself, also argued that the police department was incorrect to say the documents he requested were part of an ongoing investigation and thus exempt from disclosure.

The Supreme Court quickly dispensed of this argument, pointing out that at the time of Riemers’ request, the prosecution of the shooting victim was not complete.

“Once the shooting victim’s prosecution was completed, Riemers had access to the files and evidence logs he requested,” the court wrote.

In what may have been his most promising argument, Riemers alleged that the police department improperly pointed him to other agencies to obtain documents because those agencies were the “primary source of the information.” Riemers argued that whether or not the Grand Forks police department was the “primary source,” it nonetheless maintained copies of the documents and thus should have relinquished them in response to a valid public records request.

In its opinion, the Supreme Court declined to rule on the validity of this allegation, saying Riemers failed to bring up the matter in the lower court and thus had waived the issue.

(Riemers v. Grand Forks)NW

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