If a North Dakota public agency does not have a record I asked for, does it have to tell me, or can it just stay silent?

Plain-English summary

Karen Jordan asked the Morton County Sheriff for a "report that should've been written" concerning an investigation of the City of Mandan. The Sheriff said no investigation had started because Jordan had not met with an investigator, so he had no report. He treated her June 2022 correspondence as requests for status rather than as open-records requests and did not answer the request for the report.

The AG explained that N.D.C.C. § 44-04-18(4) does not require an entity to "create or compile a record that does not exist." Jordan's email nevertheless requested a copy of a report, so the Sheriff had to reply. The opinion concludes that the Sheriff's Office failed to tell Jordan the record did not exist and directs it to review its response process.

What this means for you

If you handle records requests for a North Dakota public entity

If a requested record does not exist, inform the requester promptly. This opinion found that Jordan's request for a report called for a reply even though the Sheriff did not have the report and had received extensive correspondence on other matters.

If you submitted a records request that received no response

The Sheriff had to reply to Jordan's request despite having no report to provide. The AG directed the office to review its process so requesters are promptly told when a requested record does not exist.

Common questions

Q: Does a public entity have to create records to respond to a request? A: No. N.D.C.C. § 44-04-18(4) says an entity need not "create or compile a record that does not exist" and only has to search records in its possession.

Q: How quickly does a response have to come?
A: The opinion says an entity must provide or deny a requested record within a reasonable time. Its remedy calls for promptly informing a requester when the record does not exist.

Q: What counts as a record request, exactly?
A: Jordan's email counted because she expressly asked for a copy of a report, even though the Sheriff understood the surrounding correspondence as status requests.

Q: What did the AG tell the Sheriff's Office to do?
A: Review its processes for responding to records requests so that requesters are promptly informed if a requested record does not exist.

Citations and references

Statutes:

• N.D.C.C. § 44-04-18 (open records)
• N.D.C.C. § 44-04-21.1 (AG opinions on open records)

Source

• Landing page: https://attorneygeneral.nd.gov/requesters-should-be-notified-if-requested-records-do-not-exist/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2023/12/2023-O-09.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-09
DATE ISSUED: December 27, 2023
ISSUED TO: Morton County Sheriff's Office

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 Morton County Sheriff's Office violated N.D.C.C. § 44-04-18 by failing to provide requested records.

FACTS PRESENTED

Beginning at least in March 2022, Karen Jordan sent Morton County Sheriff Kyle Kirchmeier several lengthy emails interspersed with allegations against various governmental entities. In one June 8, 2022, email, Karen Jordan requested that the Morton County Sheriff investigate the City of Mandan.¹ Sheriff Kirchmeier responded to this request by asking Ms. Jordan to come in and meet with an investigator to determine whether there was sufficient information to merit an investigation, or whether an investigation would have to be referred to another law enforcement agency.² On June 30, 2022, Ms. Jordan emailed Sheriff Kirchmeier another message including a request for a copy of "a report that should've been written."³ Based on the context of the email, it seems Ms. Jordan was referring to a report of an investigation of the City of Mandan. Sheriff Kirchmeier did not respond to that request.

ISSUE

Whether the Morton County Sheriff's Office violated the open records law by failing to provide records.

¹ Email from Karen Jordan to Kyle Kirchmeier, Sheriff, Morton Cnty. Sheriff's Off. (June 8, 2022, 9:02 PM).

² Email from Kyle Kirchmeier, Sheriff, Morton Cnty. Sheriff's Off., to Karen Jordan (June 15, 2022, 2:56 PM); Letter from Kyle L. Kirchmeier, Sheriff, Morton Cnty. Sheriff's Off., to Mary Kae Kelsch, Assistant Att’y Gen., Off. of Atty Gen. (Oct. 12, 2022).

³ Email from Karen Jordan to Kyle Kirchmeier, Sheriff, Morton Cnty. Sheriff's Off. (June 30, 2022, 9:12 PM). See also, Letter from Kyle L. Kirchmeier, Sheriff, Morton Cnty. Sheriff's Off., to Mary Kae Kelsch, Assistant Att’y Gen., Off. of Atty Gen. (Oct. 12, 2022).

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 Morton County Sheriff does not have the record requested by Ms. Jordan.⁷ However, the Sheriff did not promptly inform Ms. Jordan that the record did not exist. Sheriff Kirchmeier explains in his response to this office that no investigation was started because Ms. Jordan refuses to have the necessary pre-investigation conversation with the Sheriff's Office.⁸ The Sheriff further explains that, instead of cooperating with the Sheriff's Office, Ms. Jordan continued to send emails complaining about the City of Mandan and making demands for an investigation. Sheriff Kirchmeier states he understood the voluminous June correspondence constituted status requests from Ms. Jordan rather than any open records requests.⁹ I understand Sheriff Kirchmeier's frustration; however, technically Ms. Jordan requested a record when she e-mailed "[i]f the only way I can learn anything is to request a copy of a report that should've been written, then a copy is what I'll ask for under my right to receive it based on Art. I, Sec. 25(1)(1) in this state's Constitution." So the public entity was required to reply to that request in order to be compliant with the law.¹⁰

CONCLUSION

The Morton County Sheriff's Office did not inform the requester that a requested record did not exist.

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 Kyle L. Kirchmeier, Sheriff, Morton Cnty. Sheriff's Off., to Mary Kae Kelsch, Assistant Att’y Gen., Off. of Atty Gen. (Oct. 12, 2022).

⁸ Id.

⁹ Id.

¹⁰ Email from Karen Jordan to Kyle Kirchmeier, Sheriff, Morton Cnty. Sheriff's Off. (June 30, 2022, 9:12 PM).

STEPS NEEDED TO REMEDY VIOLATION

The Morton County Sheriff's Office should review its processes for responding to requests for records to make sure that if a record does not exist, the requester is informed promptly.

cc: Karen Jordan