After reviewing about 38,700 emails of State Oil and Gas Division employees that were on their way to a permanent cyber dump grounds, a Bismarck attorney is calling for a policy to protect important information for the public.
Derrick Braaten said it’s possible the division committed a Class C felony for destroying public records after employees hit the “delete” button in May 2016 on instruction from Lynn Helms, executive director of the Department of Mineral Resources, to “remove unnecessary emails.”
Acting on a tip, Braaten filed an open records request and learned that the emails were deleted from staff inboxes as well as computer trash folders over the previous two-week period and about 7,000 of those were purged in a third, more technical process.
All were restored through a storage server in the Information Technology Department and provided to Braaten and his staff over the next several months. ITD director Shawn Riley did not return two calls for comment for this story.
Braaten said his firm recently completed its review of the deleted emails and claims the department was permanently destroying records that included inter-agency communications, reports and photos of oil spills from emergency managers and landowners and reports of discrepancies in gas flaring data.
“It is illegal. These are records that shouldn’t be deleted. My concern is there’s no control over this. The attorney general could reprimand the department, but the more important thing is to get a document retention policy in place,” said Braaten, adding that what he found in deleted emails could be crucial evidence for a landowner who has a grievance on a saltwater spill, for example.
Braaten said the Oil and Gas Division charged his firm $8,900 for the email files, paid for by oil patch landowners who were concerned about the permanent loss of oil and gas records. The firm has a reputation for representing landowners and citizen groups affected by the industry.
The money charged was to reimburse the state for Oil and Gas employee time to locate and read through the restored emails and redact any confidential information.
Braaten said he asked twice for a copy of the Oil and Gas Division’s document retention policy during his review and was never provided one, leading him to believe the agency didn’t have one.
The department’s spokeswoman, Alison Ritter, provided a statement in response to the issue: “Email traffic at (the Department of Mineral Resources) is subject to applicable open records laws as public information. Information contained within emails that is subject to state retention procedures is retained and placed within the applicable database. The department follows state document retention procedures.”
She provided the Tribune with retention protocol for 112 various records generated by the department, including for email communications. The policy says that, after any conditions within the email are met, it’s subject to being landfilled or deleted. Ritter did not provide an explanation for why so many emails, dating back for months, were deleted within the two-week timeframe.
Braaten said the lack of clarity about the agency’s email records makes it all the more necessary that the Oil and Gas Division — an agency under the State Industrial Commission — undergo a performance audit. He said some information from the deleted emails should have been stored with the permanent case file that’s kept for each oil well so the public would have access to all the related information in one location, instead of having to ask for various kinds of records.
“Personally, what bothers me more are reports of documents being destroyed and misreporting of oil and gas numbers. I don’t know why there’s such resistance to an audit. We spent thousands of dollars to find out what’s going on. You’d think Oil and Gas would want an audit,” Braaten said.
The deleted emails were made public by then-governor candidates Rep. Marvin Nelson, D-Rolla and Paul Sorum, a Bismarck Republican, based on an undisclosed tip that the deletions were related to improper reporting and transportation of oil and valuable natural gas liquids.
That wasn’t uncovered in the email review, but Nelson said he continues to press for a performance audit of the department because of the complexity of files, permits and reports maintained by the division, some in boxes in a warehouse Quonset.
He said he’s not making accusations or alleging anything improper, but says: “It’s a very complicated department and, if we don’t do an audit, how do we know they’re doing what they should be?”
As an example, Nelson said he’s gone through the work of adding up the oil production of every well from its associated case file and says it never agrees with Helm’s monthly production reports.
“He’s always reporting a number larger than the well files add up to,” said Nelson, adding a performance audit would explain discrepancies and guide a document retention policy. “Is having to retain every email for five years useful? I don’t know. But the policy should be easy for the public to find."
Ritter said Helms’ monthly reports include production from all wells, along with oil from saltwater disposal wells, treating plants and condensate from gas gathering systems. The agency is subject to routine audits by the State Auditor’s office and Ritter said one completed for the 2013-2015 biennium resulted in no procedures that needed correction.
The Oil and Gas Division is an agency under the State Industrial Commission, consisting of Ag Commissioner Doug Goehring, Gov. Doug Burgum and Attorney General Wayne Stenehjem. Stenehjem, who also oversees adherence to the state’s open records laws, was not available for comment.