The Tribune Editorial Board is disappointed with a recent opinion by Attorney General Wayne Stenehjem. The Tribune asked the attorney general’s office whether the report of death for Olivia Lone Bear was a public record and had to be released.
In his opinion, Stenehjem said because the Lone Bear case is an ongoing investigation the report isn’t a public record and can be withheld.
Lone Bear, 32, of New Town, disappeared in October 2017 and her body was recovered in a submerged truck in Sanish Bay on Lake Sakakawea on July 31, 2018. Her family launched a statewide search for her that lasted through the winter of 2017-18 and into last summer. The Federal Bureau of Investigation and the Bureau of Indian Affairs joined the investigation and reportedly continue to investigate. The Lone Bear family hasn’t been satisfied with the investigation. No new information has been released since the truck and body were found. The last time the Lone Bear family received any updates in the case was late August.
The report of death is less detailed than an autopsy report, which is not a public record. The Lone Bear family hasn’t received the report, but her father got a copy of her death certificate, which lists her cause of death as "undetermined."
The University of North Dakota's Department of Pathology, which works with the Grand Forks County Coroner's Office, refused the Tribune’s request for the report of death, citing the open investigation.
The report of death becomes a public record eight days after it is finalized. Stenehjem, however, said the report is exempt from the state open records law if considered "active criminal intelligence and investigative information."
The Tribune is worried the investigation could remain “active” forever. Jack McDonald, an attorney for North Dakota media organizations, believes a report of death is a public record, regardless of whether it is part of an investigation. He compared the report to minutes of a government entity, which, if they are part of a criminal investigation, would still be public record.
"My only concern is that it allows law enforcement to take what are ordinarily public records and make them private just because they're using them to investigate," he told Tribune reporter Blair Emerson. "I think it gives them too wide a latitude that's not needed."
The Lone Bear family would like closure and that’s understandable. Apparently law enforcement hasn’t reached any conclusions in the case. The report of death could be another piece of information that could ease the burden on the family. Meanwhile, there’s no way to know how aggressive of an investigation is being conducted.
The Tribune appreciates law enforcement’s need to be able to conduct investigations. There comes a point, however, when the families involved and the public should be provided basic information. The report of death is a one-page document that indicates the cause of death and manner of death. We don’t see how releasing it would compromise the investigation. A reasonable amount of time has been devoted to the investigation.
We ask law enforcement to release the report.