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North Dakota Supreme Court says DAPL security documents are public record

The high court's decision upheld a district court ruling that rejected an effort by Dakota Access parent company Energy Transfer to keep private 16,000 documents pertaining to a partnership formed with security contractor TigerSwan during the pipeline protests near the Standing Rock Sioux Reservation in 2016 and 2017.

Horsemen spread the news of arriving law enforcement officers Oct. 27, 2016, at the Dakota Access Pipeline protest site on North Dakota Hwy. 1806 north of Cannon Ball.
Horsemen spread the news of arriving law enforcement officers Oct. 27, 2016, at the Dakota Access Pipeline protest site on North Dakota Hwy. 1806 north of Cannon Ball.
Michael Vosburg / The Forum
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BISMARCK — The North Dakota Supreme Court ruled on Thursday, April 28, that five-year-old documents connected to a partnership between the Dakota Access Pipeline operators and a private security firm are public record.

The high court's decision upheld a district court ruling that rejected an effort by Dakota Access parent company Energy Transfer to keep private 16,000 documents pertaining to a partnership formed with security contractor TigerSwan during the pipeline protests near the Standing Rock Sioux Reservation in 2016 and 2017.

A spokesperson for Energy Transfer did not immediately respond to a request for comment.

The more than 60,000 pages that make up the TigerSwan documents laid at the center of two parallel lawsuits in North Dakota, which were merged by a district court judge. In the first case, Energy Transfer aimed to recover the records from the North Dakota Private Investigation and Security Board by suing the state board and TigerSwan. In the second, First Look Institute, publisher of the nonprofit news outlet The Intercept, sued the board to access the records.

In the unanimous 15-page decision penned by Justice Lisa McEvers, the Supreme Court affirmed the district court's finding that Energy Transfer did not present any legitimate exemptions that would keep the trove of documents from being a public record.

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Government records are presumed to be open in North Dakota unless otherwise stated in law.

The state private investigation board received the documents from TigerSwan while carrying out its legally prescribed duties, which include enforcing the licensing and regulation of private investigative and security services, according to the decision.

The contents of the documents are not clear. A judge ordered TigerSwan to turn over the documents to the state board in 2020 amid a two-year lawsuit over whether the North Carolina-based security company was legally operating in North Dakota during the protests.

That case ended with TigerSwan paying a $175,000 settlement to North Dakota and agreeing not to operate in the state, though the company admitted no wrongdoing.

A 2017 report by The Intercept accused the security firm of using military-style tactics against anti-pipeline protesters that included invasive surveillance and a counter-information campaign on social media. The news outlet has sought to access the documents surrendered to the private investigation board since 2020.

Tim Purdon, a Bismarck attorney representing Intercept publisher First Look, called the Supreme Court ruling "a clear victory for citizens of North Dakota who value transparency in government and the importance of the free press."

The decision is "a big win" for open records in the state, said North Dakota Newspaper Association attorney Jack McDonald.

The decision "makes it clear that you can’t pick and choose which records are going to be open and which are not," McDonald told Forum News Service.

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The North Dakota Newspaper Association and Forum Communications Company, which owns Forum News Service, joined First Look with an amicus brief in Energy Transfer's pending case before the North Dakota Supreme Court.

It remains unclear when the TigerSwan documents will be released to The Intercept and other media outlets that requested them.

The Supreme Court also ruled in a separate but related lawsuit Thursday that the state private investigation board must comb through each document to make determinations on whether certain information could or should be exempt under state law. For example, the state must withhold documents containing proprietary trade secrets and may withhold documents prepared by an attorney in anticipation of litigation.

Purdon said the board will have to move swiftly in reviewing the documents since open records requests are pending and state law requires agencies to respond to them in a timely manner.

Jeremy Turley is a Bismarck-based reporter for Forum News Service, which provides news coverage to publications owned by Forum Communications Company.
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