How long can a North Dakota county take to respond to an open records request before the delay itself is a violation?

Plain-English summary

Someone asked the Stark County Commission for records about finalists for a Human Resources position. The county was juggling staff turnover, illness, and an upcoming election. Eleven days went by before the county even acknowledged the request. When it did respond, it denied the request on the basis that no finalists had been formally designated. That denial turned out to rest on incorrect information; once Stark County figured out its mistake, it voluntarily produced the records.

The AG found two things at once: (a) the initial denial was reasonable based on what the staff thought they knew at the time, and (b) the eleven-day silence before any acknowledgment, plus the delay in getting to the records once the error was caught, was unreasonable as a matter of law under § 44-04-18.

The opinion's value is the rule that response time is its own compliance category. A correct legal answer that arrives too late still violates the statute. Internal disruptions like staffing and elections do not pause the duty to respond.

What this means for you

If you process records requests for a North Dakota public entity

The opinion holds that the County's eleven-day delay in acknowledging the request, and the further delay in providing the records once the initial denial was identified as based on misinformation, was unreasonable under N.D.C.C. § 44-04-18, despite the staff turnover, illness, and election the County identified as contributing factors. The opinion treats the eventual voluntary release of the records as not curing the timeliness violation.

If you received a denial that turned out to rest on incorrect facts

The opinion holds that the initial denial was reasonable based on the information available to staff at the time (no "finalists" had been formally designated), so the substantive denial was not itself a violation. The opinion treats timeliness and substantive correctness as separate compliance categories.

Common questions

Q: How long is "reasonable" for a records response in North Dakota?
A: The statute does not set a number of days. The AG looks at the totality of circumstances: complexity of the request, volume of records, staffing, and whether the entity at least acknowledged receipt. Acknowledging within a few days is the safest practice; going silent for eleven days is not.

Q: Does election season or staff illness excuse delay?
A: The Stark County answer is no. Internal challenges can explain why a response takes longer to substantively produce, but they do not justify weeks of silence before any acknowledgement.

Q: We thought our denial was correct at the time. Are we off the hook?
A: On the substantive denial, yes. The AG accepted that the initial answer reflected what staff believed. But the timeliness duty is independent. A correct answer delivered too late is still a violation.

Q: What about "finalist" status, what counts?
A: The opinion's facts turn on a misunderstanding inside the entity. If you treat applicants as candidates being interviewed, those interviews and the decision points around them create records. The designation as "finalist" is a moment to capture in writing; do not leave it as folklore among staff.

Q: What is the remedy for an unreasonable-delay finding?
A: The AG can require the entity to provide the records free of charge and to revise its procedures. Repeat or egregious delays can support civil action under § 44-04-21.2 with mandatory costs, fees, and possible personal liability.

Background and statutory framework

Section 44-04-18 makes all records of a public entity open by default. The statute does not specify a maximum response time; instead the AG has read the openness presumption to imply a duty of reasonable promptness. A long line of AG opinions has applied that standard, finding violations where entities went weeks or months without responding, and accepting shorter delays for genuinely complex or voluminous requests.

The Stark County opinion is useful because it carves out the two distinct compliance categories: substantive correctness of the answer and timeliness of the process. An entity can do well on one and fail on the other. Future requesters and reviewers should treat each separately.

Citations

• N.D.C.C. § 44-04-18 (records open by default; implicit reasonable-response duty)
• N.D.C.C. § 44-04-21.1 (citizen request for AG opinion)
• N.D.C.C. § 44-04-21.2 (civil enforcement and personal liability)

Source

• Landing page: https://attorneygeneral.nd.gov/unreasonable-delay-in-responding-to-records/

Original opinion text

Full opinion text unavailable from the official source. See the linked landing page above for the official summary.

The landing page reports:

Request: Did the Stark County Commission violate the open records laws by failing to respond to a request within a reasonable time and by improperly denying a record request?

Conclusion: At the time Stark County received the request for records relating to finalist applications for a human resources position, the County was experiencing staff turnover, illness, and an election. As a result, the county took 11 days to acknowledge the response. The County initially denied the request on the ground that there were no finalists designated. When the County realized the denial was based on misinformation, it voluntarily provided the records. Although the initial denial was correct based on the information available at the time, and the county provided the records as soon as the error was realized, the delay acknowledging the request and eventually providing records was unreasonable.

Opinion 2022-O-01