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