The City of Minot violated North Dakota’s open records law when it denied a request for interview notes created in the investigation of a former city manager, according to an Attorney General’s opinion.

Last Oct. 15, the City of Minot had received a request from resident Leif Snyder for recordings, transcripts and notes from any interviews conducted by the Center for Mediation and Consultation with then city manager Tom Barry and Mayor Shaun Sipma during the 2020 personnel investigation of hostile work environment allegations against Barry.

The investigation was carried out by independent counsel, Patricia Monson. Barry was terminated in April 2020, following the investigation.

In response to the open records request, the city reported it did not have transcripts or recordings of interviews and declined to provide interview notes, claiming they were exempt as attorney work product because they were created by an attorney who was hired to conduct an independent investigation. The fact that an attorney made the notes does not automatically mean the elements of attorney work product are met, according to the opinion. The public entity must still make an analysis of the records to determine whether there are any statutory protections.

State law defines an attorney work product as a document or record prepared by an attorney representing a public entity that reflects a mental impression, conclusion, litigation strategy or legal theory. It also must be prepared exclusively for civil or criminal litigation, adversarial administriative proceedings in in anticipation of one of these actions. The interview notes were not created exclusively for legal action so cannot be withheld, the opinion stated.

The city has been directed to review the notes, redact any information that has statutory protection and release the remaining notes to the requester at no cost within seven days.