Does a North Dakota agency violate the open-records law if a citizen's email request never reached the agency because it was filtered out as spam?

Plain-English summary

Karen Jordan sent records requests by email to the Governor's Office, the North Dakota Department of Agriculture, and the North Dakota Information Technology department (NDIT) over the summer of 2022. None of the three responded, and she eventually filed a complaint with the Attorney General.

When the AG's office contacted the agencies, they searched for the requests and responsive records. NDIT found that its former CIO's email rules had filtered Jordan's message from his inbox. NDIT's research on behalf of the Governor's Office indicated that state network security measures had filtered her messages; the Agriculture Department used the same NDIT system. That system quarantined emails for thirty days before deleting them. The Governor's Office and Agriculture Department had no responsive records; NDIT found one and provided it.

The AG concluded that none of the three entities violated the open-records law by failing to respond to requests they did not receive. The opinion also reports that the systems were corrected to allow Jordan's emails through.

What this means for you

Citizens who never received a response to an email records request

If an emailed request receives no response, this opinion shows that delivery may be the issue. The AG found no violation by these entities for failing to answer requests they did not receive.

North Dakota state agencies

The Governor's Office, Agriculture Department, and NDIT searched after the AG's office brought Jordan's complaint to them. The first two found no responsive records; NDIT found one and provided it. The AG found no violation for their failure to answer requests they had not received.

NDIT and similar IT operations

The opinion describes both the former CIO's inbox rules and state network security measures that apparently filtered Jordan's emails. It reports that the systems were corrected so she could email all three entities.

Requesters and recordkeepers generally

Under § 44-04-18(4), a public entity need not "create or compile a record that does not exist" and only has to search records in its possession. Here the Governor's Office and Agriculture Department reported no responsive records, while NDIT provided one.

Common questions

Q: Does the open-records law penalize an agency for emails it never saw?
A: The AG found no violation by these three entities for failing to answer requests they did not receive. The opinion describes how the messages were filtered and what the entities did after learning of the requests.

Q: What is N.D.C.C. § 44-04-18(2)?
A: The opinion cites this provision for the rule that a public entity must provide "one copy" of a specific public record when requested.

Q: Did any of the three agencies have responsive records?
A: The Governor's Office and the Agriculture Department reported they had no responsive records. NDIT found one record and produced it after the complaint surfaced the original request.

Q: How long did the quarantined emails stay around?
A: The opinion says the state's security measures quarantined the emails for 30 days and then deleted them.

Q: What did the agencies do once they learned of the requests?
A: The opinion describes the Governor's Office and Agriculture Department searching for and confirming no responsive records, and NDIT searching, finding one responsive record, and providing it to the requester. NDIT also corrected its filtering so Mrs. Jordan's future emails would reach the agencies.

Background and statutory framework

North Dakota's open-records law requires public entities to provide "one copy" of a specific public record when requested and to provide or deny it within a reasonable time. The AG applied that law to requests the three entities did not receive.

The opinion states that the entities did not intentionally ignore Jordan's requests. After the AG's office contacted them, they searched; NDIT provided the responsive record it found. The systems were corrected to allow her emails through.

Citations and references

Statutes:

• N.D.C.C. § 44-04-18 (Access to public records; reasonable time)
• N.D.C.C. § 44-04-18(2) (Duty to provide one copy)
• N.D.C.C. § 44-04-18(4) (No duty to create or compile records)
• N.D.C.C. § 44-04-21.1 (Request for AG opinion procedure)

Source

• Landing page: https://attorneygeneral.nd.gov/the-governors-office-the-agriculture-department-and-ndit-did-not-violate-open-records-law-when-they-failed-to-respond-to-a-request-for-records-that-they-did-not-receive/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2023/11/2023-O-08.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-08

DATE ISSUED: November 20, 2023

ISSUED TO: Office of the Governor
North Dakota Department of Agriculture
North Dakota Information Technology

CITIZEN'S REQUEST FOR OPINION

Karen Jordan requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the Office of the Governor (Governor's Office), the North Dakota Department of Agriculture (Agriculture Department), and the North Dakota Information Technology department (NDIT) violated N.D.C.C. § 44-04-18 by failing to respond to requests for records.

FACTS PRESENTED

On June 28, 2022, Karen Jordan sent an email to the Governor's Office requesting records and received no response.¹ On July 19, 2022, she made a request for records to the Agriculture Department and received no response.² On August 10, 2022, she requested records from NDIT by emailing Shawn Riley, who was the CIO at the time.³

ISSUE

Whether the Governor's Office, the Agriculture Department, and the NDIT violated the open records law by failing to respond to requests for records.

ANALYSIS

The North Dakota open records law provides that a public entity must provide "one copy" of a specific public record when requested.⁴ The public entity must either provide or deny the record in a reasonable time.⁵ A public entity does not have to "create or compile a record that does not exist" and only has to search the records in its possession.⁶

The Governor's Office, the Agriculture Department, and the NDIT were not aware that Mrs. Jordan requested records from them until this office asked them to reply to her complaint.⁷ Upon hearing from our office, the agencies searched their email accounts for her request and also for the records she had requested.⁸ The Governor's Office and the Agriculture Department did not have responsive records.⁹ NDIT found a responsive record and provided it to Mrs. Jordan.¹⁰

When searching for Mrs. Jordan's email to NDIT's then CIO, Shawn Riley, NDIT discovered that her email was filtered out of the inbox because CIO Riley had email rules set up to control the number of spam messages coming into his inbox.¹¹ Based on research done by NDIT on behalf of the Governor's Office, it appears Mrs. Jordan's emails were not received because they were being filtered out by the security measures put in place for the State's IT network to block senders of malicious emails.¹² This means that the emails are quarantined for 30 days and then are deleted.¹³ The Agriculture Department is also on the NDIT system, so the same security measures were in place for their emails.¹⁴

Neither the Governor's Office, the Agriculture Department, nor the NDIT intentionally ignored the request by Mrs. Jordan for records. Every mode of communication has vulnerabilities. Once detected, the systems were corrected to allow Mrs. Jordan to email the Governor's Office, the Agriculture Department, and the NDIT.

¹ Email from Karen Jordan to [email protected] and [email protected] (June 28, 2022, 8:23 PM).

² Email from Karen Jordan to Deputy Agric. Comm'r Bodine (July 19, 2022, 12:00 AM); Letter from J.P. “Dutch” Bialke, Gen. Couns./Senior Pol’y Advisor, Agric. Dep’t, to Mary Kae Kelsch, Dir. State and Loc. Gov’t Div., Att’y Gen.’s Office (Oct. 4, 2022).

³ Email from Karen Jordan to [email protected] (Aug. 10, 2022, 10:42 PM).

⁴ N.D.C.C. § 44-04-18(2).

⁵ N.D.C.C. § 44-04-18.

⁶ N.D.C.C. § 44-04-18(4).

⁷ Letter from Ryan Norrell, Gen. Couns., Gov.’s Office, to Mary Kae Kelsch, Assistant Att’y Gen., Att’y Gen.’s Office (Oct. 13, 2022); Letter from J.P. “Dutch” Bialke, Gen. Couns./Senior Pol’y Advisor, Agric. Dep’t, to Mary Kae Kelsch, Dir. State and Loc. Gov’t Div., Att’y Gen.’s Office (Oct. 4, 2022); Email from Greg A. Hoffman, Deputy Chief Info. Officer, NDIT, to Mary Kae Kelsch, Dir. State and Loc. Gov’t Div., Att’y Gen.’s Office (Oct. 10, 2022, 3:56 PM).

⁸ Id.

⁹ Letter from Ryan Norrell, Gen. Couns., Gov.’s Office, to Mary Kae Kelsch, Assistant Att’y Gen., Att’y Gen.’s Office (Oct. 13, 2022); Letter from J.P. “Dutch” Bialke, Gen. Couns./Senior Pol’y Advisor, Agric. Dep’t, to Mary Kae Kelsch, Dir. State and Loc. Gov’t Div., Att’y Gen.’s Office (Oct. 4, 2022).

¹⁰ Email from Greg A. Hoffman, Deputy Chief Info. Officer, NDIT, to Mary Kae Kelsch, Dir. State and Loc. Gov’t Div., Att’y Gen.’s Office (Oct. 10, 2022, 3:56 PM).

¹¹ Id.

¹² Letter from Ryan Norrell, Gen. Couns., Gov.’s Office, to Mary Kae Kelsch, Assistant Att’y Gen., Att’y Gen.’s Office (Oct. 13, 2022).

¹³ Id.

¹⁴ Letter from J.P. “Dutch” Bialke, Gen. Couns./Senior Pol’y Advisor, Agric. Dep’t, to Mary Kae Kelsch, Dir. State and Loc. Gov’t Div., Att’y Gen.’s Office (Oct. 4, 2022).

CONCLUSION

Neither the Governor's Office, the Agriculture Department, nor the NDIT violated the open records law when they failed to respond to a request for records that they did not receive.

Drew H. Wrigley
Attorney General

cc: Karen Jordan