How long can a North Dakota agency take to respond to an open-records request before it counts as an unreasonable delay?

Plain-English summary

Dr. Jake Schmitz asked the North Dakota Board of Chiropractic Examiners for the phone logs of every board member and the executive director. The Board did not have a policy delegating "release exempt records" decisions to its executive director, so it had to call a special meeting before it could decide what to redact. That meeting happened on December 20, 2021. The Board sent a cost estimate on December 29, the requester paid, payment arrived on January 3, 2022, and the records went out on January 4, the day after payment was received. Total elapsed time from the December 6 request: about twenty-one days.

Dr. Schmitz argued that was too long under N.D.C.C. § 44-04-18, which says public entities must produce records within a reasonable time. The Attorney General disagreed. Twenty-one days would usually raise eyebrows, but the AG identified several reasons the delay was reasonable in context: the phone logs contained statutorily exempt material that the Board had to vote on before releasing; the meeting was promptly scheduled despite the Christmas and New Year holidays; the Board had a single full-time employee reviewing three months of five members' phone records; and the executive director kept Dr. Schmitz updated throughout. After this incident, the Board adopted a policy letting its president handle similar requests without a special meeting.

What this means for you

If you filed a records request in North Dakota that took several weeks

The opinion holds that reasonableness under N.D.C.C. § 44-04-18 is fact-specific rather than tied to a fixed clock. The AG identified the factors that made twenty-one days reasonable here: the records were exempt under N.D.C.C. § 44-04-18.1 and so required a board vote on whether to release with redactions; the request fell across the Christmas and New Year holidays; the Board had a single full-time employee redacting three months of five board members' phone logs; and the executive director kept the requester apprised of the status throughout.

If you run a North Dakota state board or licensing agency

The opinion holds that providing public records is ordinarily a "ministerial act" that does not require board action, and that an agency cannot "automatically" delay a request until the next scheduled meeting. The exception, applied here, is that exempt records under N.D.C.C. § 44-04-18.1 may need a board vote on discretionary release if the agency has not previously delegated that decision. The opinion notes that the Board subsequently adopted a policy allowing its president to handle similar discretionary release calls without a special meeting.

If you are a records officer reviewing the opinion for its reasonableness factors

The opinion combines four factors in finding the delay reasonable: exempt material requiring a discretionary release vote, the holiday calendar, single-staff redaction workload, and ongoing communication with the requester. The opinion treats ongoing communication as a separate factor weighing in favor of the agency, citing prior opinions including N.D.A.G. 2019-O-09.

Common questions

Q: How long is "a reasonable time" under North Dakota's open-records law?
A: There is no fixed deadline. The AG looks at the size and complexity of the request, the agency's available staff, whether the records contain exempt material, whether ongoing communications were maintained, and whether the agency's other responsibilities required immediate attention. Numerous prior AG opinions establish that days, weeks, or in unusual circumstances longer responses can all be "reasonable" depending on the facts.

Q: Can an agency delay a records response until its next regular meeting?
A: Only in specific circumstances. The general rule is that providing public records is a "ministerial act" that does not require board action. But when the records are exempt under N.D.C.C. § 44-04-18.1, the public entity has discretion to release or withhold them, and a vote may be needed. Even then, an agency cannot wait indefinitely for the next regular meeting; here, the Board scheduled a special meeting within two weeks.

Q: Is the requester entitled to free copies?
A: No. Agencies may charge for the cost of producing records, including redaction time, when applicable under N.D.C.C. § 44-04-18. The requester here paid the Board's cost estimate before the records were delivered.

Q: What records are "exempt"?
A: N.D.C.C. § 44-04-18.1 lists categories of records that an agency may withhold or release at its discretion (as opposed to "confidential" records, which must be withheld). Examples include certain internal communications, investigations, security plans, and contact information. Phone logs can implicate this exemption when they reveal identifying information about complainants or witnesses to a regulatory matter.

Q: Does an agency have to "create" a record in response to a request?
A: No. N.D.C.C. § 44-04-18(4) requires production only of existing records, not creation of new ones. A request for "information" (as opposed to records) is not a records request at all.

Q: What should I do if I think an agency is dragging its feet?
A: Contact the agency in writing. Ask for a status update and a target date. If you do not get a satisfactory response, file a request for an AG opinion under N.D.C.C. § 44-04-21.1. The AG's office will solicit the agency's side of the story and apply the reasonableness factors discussed above.

Background and statutory framework

North Dakota's open-records law, N.D.C.C. § 44-04-18, gives the public the right to inspect or obtain copies of most records held by public entities. The law does not set a fixed deadline; the entity must respond "within a reasonable time" and either provide the records or explain why it cannot. A failure to respond reasonably is itself a violation under N.D.C.C. § 44-04-18(8).

The Attorney General has consistently weighed circumstances rather than counting days. Cited prior opinions include 2021-O-09, 2014-O-06, and 2013-O-15 (delays for staff workload and consultation with counsel); 2019-O-09 (ongoing communication weighs in favor of agency); and 2017-O-06 and 2001-O-02 (cannot automatically wait for the next board meeting). The recurring theme: courts and the AG look at whether the agency engaged with the request promptly and worked it diligently, not whether it hit an arbitrary clock.

Exempt records are governed separately under N.D.C.C. § 44-04-18.1. When the responsive material is exempt, the agency has discretion whether to release. Many state boards historically delegated that discretion to their executive director, but if no delegation exists, the board itself has to vote, which is why this Board had to hold a special meeting before redactions could proceed.

Citations and references

Statutes:
- N.D.C.C. § 44-04-18 (Access to public records; reasonable time to respond)
- N.D.C.C. § 44-04-18(8) (Violation for unreasonable delay)
- N.D.C.C. § 44-04-18.1(2) and (4) (Exempt records discretion)
- N.D.C.C. § 44-04-17.1 (Definition of record)
- N.D.C.C. § 44-04-17.1(5) (Exempt records discretion)
- N.D.C.C. § 44-04-21.1 (Request for AG opinion procedure)

Prior AG opinions discussed:
- N.D.A.G. 2021-O-09; 2019-O-09; 2017-O-06; 2014-O-06; 2014-O-22; 2013-O-15; 2012-O-07; 2010-O-04; 2003-O-21; 2001-O-04; 2001-O-02; 98-O-03; 97-O-01

Source

• Landing page: https://attorneygeneral.nd.gov/the-north-dakota-board-of-chiropractic-examiners-provided-records-within-a-reasonable-time/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2023/11/2023-O-06.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

STATE OF NORTH DAKOTA

OFFICE OF ATTORNEY GENERAL

www.attorneygeneral.nd.gov
(701) 328-2210

Drew H. Wrigley
ATTORNEY GENERAL

OPEN RECORDS AND MEETINGS OPINION
2023-O-06

DATE ISSUED: November 20, 2023
ISSUED TO: North Dakota Board of Chiropractic Examiners
CITIZEN'S REQUEST FOR OPINION

Dr. Jake Schmitz requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the North Dakota Board of Chiropractic Examiners violated N.D.C.C. § 44-04-18 by unreasonably delaying providing requested records.

FACTS PRESENTED

On December 6, 2021, Dr. Schmitz requested phone logs for all of the North Dakota Board of Chiropractic Examiners (Board) members and executive director. Three days later, the Board's executive director responded to Dr. Schmitz's request informing him that the Board would hold a special meeting, on December 20, 2021, to discuss the exempt information responsive to his request. At the special Board meeting, the Board voted to exercise its discretion to redact certain information contained in the records under N.D.C.C. §§ 44-04-18.1(2) and 44-04-18.1(4). During the week after the special meeting, the Board members "began providing the Executive Director with their redacted phone logs." On December 29, 2021, the Board provided Dr. Schmitz an estimate of the cost to redact the records. Dr. Schmitz mailed the check to the Board the same day. Payment was received by the Board on January 3, 2022, and the Board provided the records and the explanation of the redactions to Dr. Schmitz on January 4, 2022.

On January 4, 2022, Dr. Schmitz requested "the names of the individuals who called the board members and the board phone to talk about board business" from the executive director and the Board's legal counsel. The Board's legal counsel responded the next day denying Dr. Schmitz's request for the names, reminding him that they were exempt pursuant to N.D.C.C. § 44-04-18(4).

ISSUE

Whether the Board provided records within a reasonable time.

ANALYSIS

Public entities must, within a reasonable time, provide records responsive to a request or explain why the records cannot be provided. Requests for information are not requests for records under the open meeting laws, and public entities are under no obligation to provide documents that do not exist. Failing to provide records within a reasonable time is a violation of the open record laws. Delays may be appropriate for a number of reasons, including the number of records requested, reviewing large volumes of documents to respond to a request, excising closed or confidential information, availability and workload of staff who can respond to the request, or balancing other responsibilities of the public entity that demand immediate attention. This office considers the circumstances of particular requests when determining the reasonableness of responses. Numerous past opinions recognize "circumstances, including available staff and balancing other responsibilities of the public entity that demand immediate attention, could reasonably delay providing records in response to an open record request." This office has also "previously recognized that it is appropriate to take a reasonable amount of time to consult with the public entity's attorney on a records request as long as there is a legitimate legal or factual question on whether the requested records are open." Ongoing communication with the requester of any delay is also a factor when considering timeliness of responses.

Past opinions explain that a "public entity's response to an open records request cannot be automatically extended until the next scheduled meeting of the governing body simply to enable the governing body to give its permission to release the records." This is because "[p]roviding access to records which are open to the public is a ministerial act which will not require action of a governing body in most cases." However, here, the requested records were exempt, which means they may be provided or protected at the discretion of the public entity. The Board had never previously delegated any authority to its executive director to exempt certain records. Without any delegation, the Board had to meet to decide whether to provide or protect the records.

Here, the Board took twenty-one days to provide the requested records. Usually, a delay of this length would cause concern. However, there are circumstances in this situation that must be considered. Even though there was some delay due to having to hold a special meeting, considering it was the Christmas and New Year holidays, the Board's special meeting was prompt. The Board has one full-time employee who had to review and redact three months of five board members' phone records. Additionally, the executive director remained in contact with Dr. Schmitz, keeping him apprised of the status of his request. Ultimately, the Board provided Dr. Schmitz with the responsive records the day after it received payment. For all these reasons it is my opinion that the Board did provide the requested records within a reasonable time.

CONCLUSION

The Board provided records within a reasonable time.

Drew H. Wrigley
Attorney General

AML/mjh
cc: Dr. Jake Schmitz