ND 2023-O-09 2023-12-27

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?

Short answer: The Morton County Sheriff's Office did not violate the open records law by not producing a record that did not exist, but it did violate the law by not telling the requester that the record did not exist. Public entities have to respond to records requests promptly, including with a 'no such record' answer.

Disclaimer: This is an official North Dakota Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed North Dakota attorney for advice on your specific situation.

Plain-English summary

Karen Jordan asked the Morton County Sheriff for a "report that should've been written" about an investigation into the City of Mandan. The sheriff hadn't actually opened an investigation, because Jordan had not had the pre-investigation conversation his office said was necessary. So the report did not exist. The sheriff had treated her June 30, 2022 email as another in a series of status complaints rather than as a fresh records request. Jordan disagreed and asked the AG to determine whether the open records law had been violated.

The AG concluded that no violation occurred for failing to produce a non-existent record (N.D.C.C. § 44-04-18(4) explicitly says a public entity does not have to "create or compile a record that does not exist"). But the open records law still required the sheriff to respond. Jordan's email had used the words "request a copy" and invoked the state's constitutional right of access. That made it a records request, even amid voluminous correspondence on other topics. The sheriff should have promptly told Jordan that no responsive record existed.

What this means for you

If you handle records requests

Treat any reasonable reading of an email as a request, even if it's mixed with complaints, status questions, or unrelated content. If a record doesn't exist, say so promptly. Silence isn't a defense.

If you've requested records and gotten no response

You can ask the AG for an opinion under N.D.C.C. § 44-04-21.1. A non-response is itself an open records violation, and the AG can order the entity to respond.

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) only requires the entity to search the records it already possesses. There's no duty to create or compile new records.

Q: How quickly does a response have to come?
A: "Reasonable time" under § 44-04-18. Past AG opinions accept some delay for legitimate reasons (excising confidential content, attorney consultation, balancing other agency duties), but indefinite silence isn't reasonable.

Q: What counts as a record request, exactly?
A: Any communication that identifies records the requester wants. The Sheriff's argument that Jordan's email was just a status complaint failed because she explicitly asked "for a copy of a report" and invoked the constitutional right of access.

Q: What's the remedy if the public entity violates the law?
A: The entity has to comply within seven days of the AG's opinion. Failure can trigger mandatory attorney fees and costs in a civil action under N.D.C.C. § 44-04-21.2, and possible personal liability for the responsible official.

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)
- N.D.C.C. § 44-04-21.2 (civil enforcement)

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

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-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. 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. 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." 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.

ANALYSIS

The North Dakota open records law provides that a public entity must provide "one copy" of a
specific public record when requested. The public entity must either provide or deny the record
in a reasonable time. 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.

The Morton County Sheriff does not have the record requested by Ms. Jordan. 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. 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. 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.

CONCLUSION

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

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