Forum Pub. Co. v. City of Fargo

• Decision Date: 18 July 1986
• Docket Number: No. 11161,11161
• Citation: Forum Pub. Co. v. City of Fargo, 391 N.W.2d 169 (N.D. 1986)
• Parties: 13 Media L. Rep. 1362 The FORUM PUBLISHING COMPANY, Plaintiff and Appellee, v. The CITY OF FARGO, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 169

391 N.W.2d 169

13 Media L. Rep. 1362

The FORUM PUBLISHING COMPANY, Plaintiff and Appellee, v.The CITY OF FARGO, Defendant and Appellant.

Civ. No. 11161.

Supreme Court of North Dakota.

July 18, 1986.

Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for plaintiff and appellee; argued by H. Patrick Weir and Lori J. Beck.

Solberg, Stewart, Boulger & Miller, Fargo, for defendant and appellant; argued by Wayne O. Solberg.

ERICKSTAD, Chief Justice.

The City of Fargo(City) appeals from a writ of mandamus ordering it to deliver to the Forum Publishing Company and other members of the media the applications and records disclosing the names and qualifications of applicants for Chief of Police of Fargo.We affirm.

When the Chief of the Fargo Police Department announced his retirement, effective January 4, 1986, the Fargo City Commission hired Personnel Decisions, Inc.(PDI) to help it select a new police chief.PDI is a consulting firm specializing in evaluating applications for executive positions.Pursuant to its agreement ¹ with the City, PDI was to evaluate the applicants and transmit to the City the names and qualifications of the six applicants that PDI determined were most qualified.Thereafter, PDI and a local citizens committee appointed by the City were to conduct further evaluations and submit their recommendations to the City for a final decision.

PDI placed advertisements soliciting applications for the position in a number of trade publications.The advertisements indicated that interested persons could obtain applications by contacting the personnel department of the City and that completed applications were to be mailed to PDI by December 31, 1985.PDI received approximately 45 applications for the position.After the deadline for receiving applications had passed, the Forum requested that the City furnish it with the applications and records disclosing the names and qualifications of all the applicants for the position.The material was not produced, and the Forum commenced a declaratory judgment action and sought a writ of mandamus to compel disclosure of the documents on the grounds that they were records subject to disclosure under Section 44-04-18, N.D.C.C.

The district court concluded that the applications and records disclosing the names and qualifications of the applicants were records subject to disclosure under Section 44-04-18, N.D.C.C.The district court ordered the City to notify all applicants that disclosure would be made, thereby allowing applicants not wanting their names to be made public to withdraw their applications, and to thereafter provide to the Forum and other members of the media the applications and records of the remaining applicants.The City appealed.

The City's application for a stay pending appeal was denied by the district court and by this court, and the documents have been released to the Forum and other members of the media.Thus, the first issue we must consider on appeal is whether that event renders the instant appeal moot.

Ordinarily an appeal will be dismissed if the question raised on appeal has become moot or if, without fault of the respondent, an event has occurred which makes a determination of the question unnecessary and leaves no actual controversy to be determined.Wahpeton Public School District v. North Dakota Education Ass'n, 166 N.W.2d 389(N.D.1969);Hart v. Bye, 86 N.W.2d 635(N.D.1957).However, in Hart v. Bye, supra, 86 N.W.2d at 637, we noted that an appeal will not be dismissed as moot if it involves a question of great public interest, and we quoted with approval the following:

" 'We understand "public interest" to mean more than mere curiosity; it means something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected.It does not mean anything so narrow as the interest of the particular localities which may be affected by the matter in question.' "

In North Dakota Wheat Growers' Ass'n v. Moore, 52 N.D. 904, 204 N.W. 834(1925), we stated that if the matter in controversy appears to be one of great public interest and involves the authority and power of public officials, the appeal will not be dismissed as moot.

The United States Supreme Court has said that a case is not moot if the controversy is "capable of repetition, yet evading review."Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683(1976).

We believe that the issue presented in this case is a question of great public interest and involves the right of the public and community at large to be informed of matters of public concern.Moreover, the case also indirectly involves the authority and power of public officials with respect to the use of third parties in the hiring of public officials and the applicability of the open-record law to that third party.The instant case is capable of repetition in that any public body may wish to use a consulting firm to assist it in hiring public officials.The issues in this case may also evade review because a stay may be denied in a future case in order to allow the information to be available to the public during the hiring process.If a stay were granted, the hiring process would either be delayed pending appeal or done without the information available to the public.Either result is undesirable because one would unnecessarily hamper the governmental hiring process and the other would defeat the purpose of making the information available to the public.We therefore conclude that this case is not moot and proceed to the merits.

The City contends that the applications and supporting documents are not "records" subject to North Dakota's open-record law.

North Dakota's open-record law, Section 44-04-18, N.D.C.C., tracks Art. XI, Sec. 6, N.D. Const., ² and provides:

"44-04-18.Access to public records--Penalty.--

"1.Except as otherwise specifically provided by law, all records of public or governmental bodies, boards, bureaus, commissions or agencies of the state or any political subdivision of the state, or organizations or agencies supported in whole or in part by public funds, or expending public funds, shall be public records, open and accessible for inspection during reasonable office hours.

"2.Violations of this section shall be punishable as an...