Can a citizen use North Dakota's open-records law to demand a public official's personal utility bill from the official's office?

Plain-English summary

Karen Jordan asked the Morton County State's Attorney's office to produce a copy of "the last utility bill you received from the city for [the State's Attorney's personal home address]." When the office did not respond, she repeated the request. The State's Attorney then wrote back saying the bill was not a record of his office.

The Attorney General agreed. North Dakota's open-records statute reaches records in a public entity's possession that were received or prepared in connection with public business or relate to public business. The AG concluded the State's Attorney's personal water bill was not a record of his office. The opinion says the city water record would be a public record of the City of Mandan, subject to appropriate redactions if requested there.

What this means for you

If you sought a public official's personal record from the official's office

The opinion holds that a public official's personal household water bill is not a record of the official's office under N.D.C.C. § 44-04-17.1 because it was not received or prepared in connection with public business. The opinion specifically notes that the same record would be a public record of the City of Mandan as the utility, subject to applicable redactions for public employees under N.D.C.C. § 44-04-18.1 and for prosecutors under N.D.C.C. § 44-04-18.3, if requested there.

If you are a North Dakota public official handling a records request

The opinion holds that an elected official is responsible only for the records the office creates and works with in its public capacity, and is not obligated to turn over personal records. The opinion also reaffirms that the open records law does not require an entity to create or compile a record that does not exist (N.D.C.C. § 44-04-18(4)).

Common questions

Q: What makes a document a "public record" under North Dakota law?
A: The opinion says the record must be in a public entity's possession and must have been received or prepared in connection with public business or relate to public business. Whether a record may be withheld is a separate question.

Q: Is everything a public official has at work a public record?
A: The AG concluded this State's Attorney did not have to turn over his personal water bill as a record of his office. The opinion ties the duty to records created or worked with in the official's public capacity.

Q: Could the requester have obtained the water bill another way?
A: Yes. The AG specifically noted that the water bill, if requested from the City of Mandan, would be a public record of the city utility, subject to the city's own redaction rules for personal information about public employees and prosecutors.

Q: Why did the AG mention prosecutor protections?
A: The opinion says a city water record requested from Mandan could be provided subject to appropriate redactions under N.D.C.C. § 44-04-18.1 for public employees and § 44-04-18.3 for prosecutors. It does not identify which entries on this bill would require redaction.

Q: Does an agency have to create a record to respond?
A: No. N.D.C.C. § 44-04-18(4) is clear that the open-records law does not require an agency to "create or compile a record that does not exist." Asking for a record that the agency never had is not a violation of the law.

Q: What if I think an agency wrongly told me a record is "personal"?
A: File a request for an AG opinion under N.D.C.C. § 44-04-21.1. The AG's office will examine whether the document was actually in the office's possession in connection with public business.

Background and statutory framework

North Dakota's open-records statute, N.D.C.C. § 44-04-18, gives the public a right to inspect or copy public records. The scope of "record" is defined in N.D.C.C. § 44-04-17.1(16) and turns on whether the document is in a public entity's possession and was received or prepared in connection with public business or relates to public business. The AG concluded this official's personal water bill was outside the records of his office.

The open-records law also does not require creation of records. The opinion cites N.D.C.C. § 44-04-18(4) for that rule and notes that a city water record requested from Mandan could be provided subject to appropriate redactions under §§ 44-04-18.1 and 44-04-18.3.

The AG's reasoning treats elected officials like every other public employee for this purpose: they are responsible only for records they create or work with in their official capacity, not for personal documents that happen to bear their name.

Citations and references

Statutes:

• N.D.C.C. § 44-04-18 (Access to public records)
• N.D.C.C. § 44-04-18(4) (No duty to create or compile records)
• N.D.C.C. § 44-04-17.1 (Definition of record)
• N.D.C.C. § 44-04-17.1(16) (Possession plus public-business nexus)
• N.D.C.C. § 44-04-18.1 (Exempt records, public employee personal information)
• N.D.C.C. § 44-04-18.3 (Exempt records for prosecutors)
• N.D.C.C. § 44-04-21.1 (Request for AG opinion procedure)

Source

• Landing page: https://attorneygeneral.nd.gov/the-morton-county-states-attorney-did-not-violate-open-records-law-by-denying-a-record-request/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2023/11/2023-O-07.pdf

Original opinion text

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-07

DATE ISSUED: November 20, 2023
ISSUED TO: Morton County State's Attorney's Office
CITIZEN'S REQUEST FOR OPINION

Karen Jordan and S. Paul Jordan[1] requested an opinion from this office under North Dakota Century Code § 44-04-21.1 asking whether the Morton County State's Attorney's office violated N.D.C.C. § 44-04-18 by failing to provide a record.

FACTS PRESENTED

On March 14, 2022, Karen Jordan requested "a copy of the last utility bill you received from the city for [Mr. Koppy's personal home address]."[2] He did not provide the record, so Mrs. Jordan asked again on May 16, 2022.[3] On May 19, 2022, Mr. Koppy replied in writing that the record requested was not a record of the Morton County State's Attorney's Office.[4]

ISSUE

Whether the Morton County State's Attorney violated the open records law by denying a request for his personal water bill.

ANALYSIS

The open records law does not require a public entity to create or compile a record that does not exist.[5] A record is subject to the open records law only if it is in the possession of the public entity and was either received or prepared in connection to public business or is related to public business.[6]

[1] Emails to the State's Attorney's office regarding the water bill issue primarily are from Karen Jordan, but some are from S. Paul Jordan. Emails from both of them pertain to the same issue, so this opinion addresses any request for an opinion either has requested regarding this matter.
[2] Email from Karen Jordan to Morton Cnty. State's Att'y (Mar. 14, 2022, 10:28 PM).
[3] Email from Karen Jordan to Morton Cnty. States Att'y (May 16, 2022, 10:09 PM).
[4] Letter from Office of the Morton Cnty. State's Att'y to Karen Jordan (May 19, 2022).
[5] N.D.C.C. § 44-04-18(4).
[6] N.D.C.C. § 44-04-17.1(16).

A city water record is a public record of the City of Mandan and if requested from the city, could be provided to a requester, subject to the appropriate redactions regarding public employees under N.D.C.C. § 44-04-18.1 and prosecutors under N.D.C.C. § 44-04-18.3. The city water record is not, however, a record of the Morton County State's Attorney's office. As the elected State's Attorney for Morton County, Mr. Koppy is responsible only for the records he creates and works with as the county State's Attorney. As a public official, he is not obligated to turn over personal records.

CONCLUSION

The Morton County State's Attorney did not violate the open records law by denying a request for his personal water bill.

Drew H. Wrigley
Attorney General

cc: Karen Jordan and S. Paul Jordan