An Introduction to Understanding North Dakota ’ s Open Record and Meeting Law
By Sandra L . DePountis
North Dakota has long recognized the importance of a transparent government and has enacted open record and meeting laws 1 consistent with the principle that the public should be aware of how its government operates and public funds are spent .
Although open record and meeting laws appear straightforward , attorneys , who are accustomed to the protections afforded in private practice , may struggle with these concepts while advising and representing clients that are public entities . This article provides a broad overview of the law , as well as noteworthy nuances and avoidable pitfalls .
ENTITIES SUBJECT TO THE LAW
“ Public entities ,” as defined in North Dakota Century Code § 44-04-17.1 ( 13 ), are subject to the open record and meeting laws and include organizations created by state statute , organizations supported by or expending public funds , and organizations created or recognized by an action of a political subdivision , to exercise public authority or perform governmental functions . Organizations may also be subject to these laws if a public entity has delegated part of its government business to a third party organization and that organization is performing a government function on behalf , or in place , of the public entity .
When attorneys represent and advise public entities , they become “ agents ” of the public entities . Records in possession of the attorneys , received or prepared in connection with public business or which contain information relating to public business , are subject to open records law .
Courts are generally not subject to open record and meeting laws . Courts can implement their own rules when it comes to the accessibility of records in their possession and judicial proceedings .
OPEN RECORDS LAW
Any “ record ” that is in the “ possession ” of a “ public entity ” regarding “ public business ” is subject to the open records law . “ Record ”
8 THE GAVEL is defined in N . D . C . C . § 44-04-17.1 ( 16 ) as recorded information of any kind , including audio and video recordings , text messages , and emails . N . D . C . C . § 44-04- 17.1 ( 12 ) defines “ public business ” broadly as “ all matters that relate or may foreseeably relate in any way ” to the performance of governmental functions or a public entity ’ s use of public funds .
It generally does not matter who “ owns ” or receives the record or what device is used to transmit the record . For example , if I compose an email on my personal computer , during non-business hours , using a private email address , but I discuss the open record and meetings law in the email , that email would become subject to open records law . Why ? Because it is a record ( emails are recorded information ), it is in my possession ( it is available in my sent folder ), and it pertains to my public business as an employee of the State of North Dakota who holds the open record and meeting portfolio .
Records are considered open unless a “ law ” specifically makes the record exempt , closed , or confidential . “ Law ” is defined by N . D . C . C . § 44-04-17.1 ( 8 ) as any federal statute or regulation or state statute . This definition does not include adopted court rules or the rules of professional responsibility . Attorneys representing public entities cannot cite “ attorney client privilege ” as an exception to open record and meetings law because it is not a federal or state law . 2 Likewise , records in the possession of courts , made confidential pursuant to a court order or rule , may not have the same protection if the record is in possession of , for example , a State ’ s Attorney . The State ’ s Attorney could not rely on the court order or rule , and would instead have to cite to a federal or state law to withhold the record . For example , N . D . C . C . § 44-04-19.1 ( 6 ) protects an attorney ’ s “ work product .”
Anyone can request public records . It is generally a violation of open records law to inquire into the requestor ’ s identity or motive for wanting public records or to require the request be in writing . 3
Requests must reasonably identify records sought , and a general dialogue with the requestor is permissible if a public entity is uncertain what records are requested . Generally , a public entity is under no duty to create a record that does not exist or obtain records that are not in its possession . A request for information is not a request for a record . For example , a requestor asking why a public board voted a certain way on an agenda topic is not a request for a record , it is a request for information . A public entity may answer the question if it so desires , but could reply that it will not be responding because the requestor failed to identify a record .
It is also noteworthy that if a public entity is currently in litigation , parties to the proceeding must use the discovery process and not the open records law in accessing documents pursuant to N . D . C . C . § 44-04- 18 ( 6 ).
OPEN MEETINGS LAW
Open meetings law requires all public meetings to be open and accessible to the public , preceded by sufficient notice in compliance with N . D . C . C . § 44-04-20 , and minutes taken as required by N . D . C . C . § 44- 04-21 ( 2 ). Open meeting laws are triggered when a “ quorum ” of a “ governing body ” of a “ public entity ” is present and “ public business ” is conducted or discussed . “ Quorum ” is defined in N . D . C . C . § 44-04-17.1 ( 15 ) as “ one half or more ,” not majority . 4
A “ governing body ” is the “ multimember body responsible for making a collective decision on behalf a public entity ” pursuant to N . D . C . C . § 44-04-17.1 ( 6 ). This definition also includes “ any group of persons , regardless of membership , acting collectively pursuant to authority delegated to that group by the governing body .” Under this definition , anytime a governing body delegates any part of its government duties or functions to two or more people , it creates a committee and this committee will be subject to open meeting laws . No formal motion is needed to create the committee , as long as the governing body collectively recognizes , decides , or authorizes two or more people to