North Dakota Open Records Statute

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The Open Records Statute is a series of laws designed to guarantee that the public has access to public records of governmental bodies in North Dakota.

The North Dakota Open Meetings Statute legislates the methods by which public meetings are conducted.

To learn more about how to make a public records request in this state, please see North Dakota FOIA procedures.


Relevant legal cases

See also: Court cases with an impact on state FOIA and North Dakota sunshine lawsuits

Here is a list of relevant lawsuits in North Dakota (cases are listed alphabetically; to order them by year, please click the icon to the right of the "year" heading).


Lawsuit Year
City of Grand Forks v. Grand Forks Herald 1981
Forum Publishing Company v. City of Fargo 1986
Grand Forks Herald v. Lyons 1960


Proposed changes

2011

See also: Proposed reforms in state sunshine laws, 2011


We do not currently have any legislation for North Dakota in 2011.


2010

See also: Proposed reforms in state sunshine laws, 2010


We do not currently have any legislation for North Dakota in 2010.


2009

See also: Proposed reforms in state sunshine laws, 2009

House Bill 1220 was endorsed by the House Judiciary Committee on January 20, 2009.[1] The bill sought to change North Dakota's open meetings law to permit local governing bodies to gather during times of emergency without prior issuance of notice. An amendment to the bill specified that "public officials would be restricted to matters regarding the disaster, and could not conduct any official business without issuing a public notice."[2]

Senate Bill 2087, introduced by the Education Committee (at the request of the State Board of Higher Education), sought to exempt the names of applicants for university presidencies and the higher education system chancellor until a job search reaches the semifinalist phase.[3] Sen. John Andrist (R-Crosby) amended the bill to make more names public sooner in the process, and to give applicants two weeks notice prior to the time when their names would become public, at which point applicants wishing to remain private could rescind their application.[4] SB2087 passed the Senate 30-15 and moved to the House. The Bismarck Tribune was advocating for the House to quash the bill, saying it is "not good public policy. It is good-old-boy-network politics."[5]

SB2087 was defeated in the House 56-37.[6]

North Dakota's transparency report card

A 2008 study, BGA - Alper Integrity Index, conducted by the Better Government Association and sponsored by Alper Services, ranked North Dakota #34 in the nation (tied with Nevada) with an overall percentage of 48.10%.[7]

A 2007 study, Graded state responsiveness to FOI requests, conducted by BGA and the NFOIC, gave North Dakota 44 points out of a possible 100, a letter grade of "F" and a ranking of 30 out of the 50 states.[8]

A 2002 study, Freedom of Information in the USA, conducted by IRE and BGA, ranked North Dakota's law as the 38th worst in the country, giving it a letter grade of "D."[9]

Features of the law

Sunshine variations Compare States: Sunshine variations
Click on the heading to compare your state's law to other state's transparency laws.

Declared legal intention

See also: Declared legal intentions across the U.S.

While the law does not have a clearly defined legal intention, it does state that "all records of a public entity are public records, open and accessible for inspection during reasonable office hours."[10]

What records are covered?

See also: Defining public records

North Dakota law defines records as, "recorded information of any kind, regardless of the physical form or characteristic by which the information is stored, recorded, or reproduced, which is in the possession or custody of a public entity or its agent and which has been received or prepared for use in connection with public business or contains information relating to public business."[11]

Exemptions

Notable exceptions include but are not limited to:[12]

  • drafts of documents can be withheld, given that the final document is released upon completion (North Dakota Statute 44.04, 18.11)
  • employee medical or assistance records (North Dakota Statute 44.04, 18.1.1 )
  • employee and licensee personal information including, "home address; home telephone number; photograph; medical information; motor vehicle operator's identification number; payroll deduction information; the name, address, telephone number, and date of birth of any dependent or emergency contact; any credit, debit, or electronic fund transfer card number; and any account number at a bank or other financial institution" (North Dakota Statute 44.04, 18.1.2)
  • information that would identify undercover agents and informants (North Dakota Statute 44.04, 18.3.2 and 4)
  • personal information of law enforcement agencies and work schedules (North Dakota Statute 44.04, 18.3.1 and 3)
  • trade secrets and information concerning potential business locations (North Dakota Statute 44.04, 18.4)
  • computer software (North Dakota Statute 44.04, 18.5)
  • "a record of a purely personal or private nature, a record that is legislative council work product or is legislative council-client communication, a record that reveals the content of private communications between a member of the legislative assembly and any person, and, except with respect to a governmental entity determining the proper use of telephone service, a record of telephone usage which identifies the parties or lists the telephone numbers of the parties involved" (North Dakota Statute 44.04, 18.6)
  • criminal investigation information (North Dakota Statute 44.04, 18.7)
  • examinations (North Dakota Statute 44.04, 18.8)
  • financial account information (North Dakota Statute 44.04, 18.9)
  • lists of minors, including contact information (North Dakota Statute 44.04, 18.13)
  • fundraising and donor records for non-profits and schools (North Dakota Statute 44.04, 18.15)
  • student medical information (North Dakota Statute 44.04, 18.16)
  • personal information from consumer complaints (North Dakota Statute 44.04, 18.17)
  • autopsy images (North Dakota Statute 44.04, 18.18)
  • economic assistance records for individuals (North Dakota Statute 44.04, 18.19)
  • domestic violence records (North Dakota Statute 44.04, 18.20)
  • email and telephone information from non-employees (North Dakota Statute 44.04, 18.21)
  • attorney client confidentiality (North Dakota Statute 44.04, 19.1)
  • security information(North Dakota Statute 44.04, 25 and 27)
  • Social Security numbers (North Dakota Statute 44.04, 18.28)

However, North Dakota law requires departments to separate exempt material from non-exempt and release the non-exempt material.[13]

Deliberative process

See also: Deliberative process exemption

What agencies are covered?

See also: Defining public body

Public agencies include all all entities created or recognized by the constitution, statute or executive decree at all levels of state and local government, as well as organizations that receive public funding.[14]

Legislature

See also: Legislatures and transparency

The legislature falls under the definition of public body found at North Dakota Statute 44.04, 17.12 and is subject to the North Dakota Open Records Statute.

Privatized governmental agencies

See also: Private agency, public dollars and Private agency, public dollars-North Dakota

The definition of public body in the Open Records Statute extends to all private entities that receive public funding or perform a public function.

Public universities

See also: Universities and open records

The definition of public body presumably includes public universities within the state. However, testing and exam material and donor records are explicitly exempted under North Dakota Statute 44.04.

Who may request records?

See also: List of who can make public record requests by state

Anyone may request public documents in North Dakota.[15]

Must a purpose be stated?

See also: States requiring a statement of purpose

There is no law requiring a statement of a purpose within the North Dakota Open Records Statute.


How can records be used?

See also: Record use restrictions

There are no restrictions placed on the use of records.

Time allowed for response

See also: Request response times by state

No response times are specified.

Fees for records

Copy costs

See also: How much do public records cost?

North Dakota statute allows for the charging of fees, which include the cost of duplication, labor and use of equipment.[16]

Search fees

See also: Sunshine laws and search fees

Labor fees may be up to $25 an hour, not to include the first hour of labor and may include both search time, and the time it takes to separate exempt and non-exempt material.[17]

Role of the Attorney General

See also: Role of the Attorney General

Under § 44-04-21.1 of the North Dakota Century Code, any individual whose request for access to public records has been denied may request an opinion be issued by the State Attorney General. This written opinion must be delivered within 30 days of the alleged violation. Should the Attorney General decide in favor of the requester, the public agency or state governmental official has seven days after the opinion is issued to comply with the open records request, regardless of whether civil action is brought against them or not. Failure to comply with the Attorney General's opinion "will be the same as for other attorney general's opinions, including potential personal liability for the person or persons responsible for the noncompliance."[18] Additionally, if civil action is brought against the public agency accused of violating the open records law, " the entity, at its sole cost and expense, shall retain separate counsel who has been approved and appointed by the attorney general to represent the entity in that action."[18]

Open meetings

All "meetings of a public entity must be open to the public" in North Dakota. The right to photograph or record public meetings is also explicitly included in the statute.[19]

Notable requests

2008

The Grand Forks Herald requested copies from the University of North Dakota (UND) regarding disciplinary procedures after anti-Semitic graffiti episodes occurred on campus in May 2008. UND denied the request, citing the Family Educational Rights and Privacy Act (FERPA), leading North Dakota attorney general Wayne Stenehjem to rule that the university was required to provide the paper with the requested documents.[20]

See also

External links

References