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Port: A North Dakota cop seized a journalist's cellphone. The public is owed more than an apology

This situation deserves something more than a mea culpa from Stenehjem and the BCI. We need to make sure that Remus and other law enforcement agents across the state understand North Dakota's shield law for reporters, and the importance of the work reporters do.

Attorney General Wayne Stenehjem Michelle Griffith / The Forum
FILE PHOTO: Attorney General Wayne Stenehjem
Michelle Griffith / The Forum
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MINOT, N.D. — Not so long ago I was writing a series of stories about an abusive and unprofessional city manager working, at the time, for the City of Minot.

Among my sources for those stories were city employees who were speaking to me on condition of anonymity because they feared retribution from the manager, Tom Barry, and his friend, Mayor Shaun Sipma.

It turned out their fears were justified. At one point Barry marched several city employees into a police interrogation room and grilled them on whether or not they'd been speaking to me. They were even asked to sign documents indicating whether or not they'd spoken to me.

Tom Barry form
An excerpt from a document City of Minot employees were asked to sign by former City Manager Tom Barry
Public record obtained from the City of Minot

The intent of those actions was to scare city employees away from speaking to a member of the news media like me.

That was wrong. Barry's actions ultimately led the City of Minot to terminate his employment. He got a cushy payout from the taxpayers, thanks to some changes to his employment contract he negotiated with Sipma, and a new job working for Beltrami County in Minnesota .

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I bring up the Barry fiasco as a way to illustrate that I understand what it's like to be the target of intimidation efforts from the government. It's why I sympathize with Tom Simon, a radio reporter working in Williston who recently had his phone seized by a cop who was demanding to know who his sources are.

Simon has been working on stories about closed-door meetings held by the local school board about a now-departed school superintendent . At a Monday meeting "Charissa Remus, an agent for the North Dakota Bureau of Criminal Investigation, asked Simon to identify his sources then demanded that he hand over his phone," the Associated Press reports .

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Afraid of what would happen if he refused, Simon complied.

It turns out the BCI had a warrant to seize several cellphones, including Simon's, which, per the AP, was identified in the warrant only by number.

But Remus clearly knew that Simon is a reporter. Why else would she ask for his sources?

That Remus knew Simon is a reporter is important, because North Dakota has a shield law for reporters.

Section 31-01-06.2 of the North Dakota Century Code states: "No person shall be required in any proceeding or hearing to disclose any information or the source of any information procured or obtained while the person was engaged in gathering, writing, photographing, or editing news and was employed by or acting for any organization engaged in publishing or broadcasting news, unless directed by an order of a district court of this state which, after hearing, finds that the failure of disclosure of such evidence will cause a miscarriage of justice."

What this means is that if the cops or prosecutors want to compel information from a reporter, something that includes seizing information from a reporter by way of a search warrant, a hearing must be held.

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Excerpt from North Dakota journalist shield law
An excerpt from the North Dakota Century Code relating to protections for information gathered by journalists.
North Dakota Century Code

There was no hearing held before Simon had his phone taken away.

Per the AP report, Attorney General Wayne Stenehjem, who is in charge of the BCI, said the agents working on the case in Williston "were unaware that Simon was protected by shield law.”

That's unacceptable.

Those who enforce the law ought to know the law.

This isn't a small matter, either. For a journalist to do something more than regurgitate news releases, or transcribe the goings-on at public events, they must develop sources. People who will help them get a peek behind the curtain. Most reporters, the good ones, anyway, have sources who will never be quoted in a story but will tell that reporter which rocks they should look under to find stories.

You can't develop sources like that if you can't protect them, and you can't protect them if an agent of the government can take a phone away from a reporter.

“When you do this kind of thing, it has a chilling affect,” Simon told the AP . “What it says in essence is that if you talk to Tom Simon, the reporter, here’s what’s going to happen to you. That is very dangerous for the reporter and the public because the public has the right to know what’s going on with their elected officials.”

This situation deserves something more than a mea culpa from Stenehjem and the BCI.

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We need to make sure that Remus and other law enforcement agents across the state understand North Dakota's shield law for reporters, and the importance of the work reporters do.

Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at rport@forumcomm.com. Click here to subscribe to his Plain Talk podcast.
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