N.D. legislature considers bill shielding pipeline projects from public records requests
On Jan. 22, 2019, the North Dakota state senate passed a bill that would amend its open records law to limit the release of information around protests against the Dakota Access Pipeline. The North Dakota state assembly is expected to vote on the bill, known as SB 2209.
The bill would amend a section of North Dakota’s open records act, making records related to pipeline projects exempt from disclosure, The Intercept reports. News organizations have relied on the state’s strong open records laws to obtain information about how state law enforcement agencies have aggressively responded to the anti-pipeline protests.
The current version of North Dakota’s open records act includes a relatively narrow exemption (44-04-24) for any “security system plan” related to “critical infrastructure,” which the law defines as “public buildings, systems, including telecommunications centers and computers, power generation plants, dams, bridges, and similar key resources.”
SB 2209 proposes to amend that provision of the law, most notably by expanding the definition of “critical infrastructure” to include “systems related to utility services, fuel supply, energy, hazardous liquid, natural gas, or coal.” This subtle tweak could allow the state to deny open records requests for information about law enforcement surveillance of pipeline protesters, on the grounds that oil pipeline projects are “critical infrastructure” and therefore largely exempt from the open records law.
Jeffrey Haas, a civil rights attorney who has provided support to pipeline protesters, told The Intercept that SB 2209 seems designed to prevent the public from learning about law enforcement’s response to pipeline protests.
“I think this is clearly a response to what you learned through freedom of information requests,” he told The Intercept, which has extensively reported on law enforcement’s surveillance of protesters. “They did not like to have to disclose that information. This is an effort to prevent that in the future.”
SB 2209 is currently in committee in the North Dakota assembly, which ends on May 2. The state assembly is also currently considering a similar bill, SB 2044, that would make intentionally interfering with the construction of a “critical infrastructure facility,” such as a pipeline, a Class C felony.
As Freedom of the Press Foundation reported last year, an increasing number of state legislatures around the country have passed or are considering bills that designate oil pipelines as “critical infrastructure,” which allows the state to bring felony charges against pipeline protesters and the journalists who cover them.
After passing the house and senate chambers, North Dakota Governor Doug Burgumsigned SB 2209 into law on April 9, 2019. The law makes records related to pipeline projects in the state now exempt from disclosure through open records requests.
On April 11, Burgum signed into law SB 2044, making it a Class C felony to intentionally tamper with "critical infrastructure," including pipelines.