Does a North Dakota county board violate the open records law just by overlooking a records request and never responding?

Plain-English summary

In June 2022, Karen Jordan emailed the Morton County Board of Equalization (every member of which also sat on the County Commission) asking for the Board's annual meeting publication notices required by N.D.C.C. § 57-02-52. One commissioner handed a paper copy of the request to the County Auditor. Then, by the Board's own description, the request "got overlooked" and was never fulfilled. Jordan didn't get a reply, so she asked the AG.

The AG concluded that the Board violated the open records law. Public entities must either provide or deny records requests within a reasonable time. There can be legitimate reasons for delay (excising confidential content, attorney consultation, balancing other duties), but indefinite silence isn't one of them. Even after the oversight was brought to their attention, the Board didn't fulfill the request.

The remedy: the Board had to provide the requested records to Jordan free of charge if they existed, and review its open records procedures so the same failure doesn't recur.

What this means for you

If you're a county records custodian

Don't rely on a single point of failure for handling open records requests. If a request is delivered to one official but not actioned, the entity is still on the hook. Build a redundant tracking system: a request log, a calendar reminder, or written acknowledgments to requesters.

If you're a citizen who didn't get a response

The AG can issue an opinion ordering the entity to respond. If the entity ignores the AG's opinion within seven days, you can sue under N.D.C.C. § 44-04-21.2 with mandatory attorney fees if you prevail.

Common questions

Q: What's an "annual meeting publication notice"?
A: N.D.C.C. § 57-02-52 requires county boards of equalization to publish notices of their annual meetings. The records here were the published notices for prior years.

Q: Is "we forgot" ever a defense?
A: No. The opinion treats the open records duty as continuous. A request that's overlooked is still pending, and the entity must answer it once the oversight comes to light.

Q: What if the records don't exist?
A: The Board still has to respond. The duty is to answer, not necessarily to produce. See AG Op. 2023-O-09 for the same principle in a different context.

Q: Can a custodian charge for copies of overlooked records?
A: Not in this remedy posture. The AG specifically required the records be provided "free of charge" because the violation had already occurred and the requester shouldn't bear the cost of the entity's lapse.

Citations and references

Statutes:
- N.D.C.C. § 44-04-18 (open records)
- N.D.C.C. § 44-04-21.1 (AG opinions)
- N.D.C.C. § 57-02-52 (board of equalization annual meeting notice)

Source

• Landing page: https://attorneygeneral.nd.gov/the-morton-county-board-of-equalization-did-not-respond-to-a-request-for-records/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2024/01/2024-O-01.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
2024-O-01
DATE ISSUED: January 3, 2024
ISSUED TO: Morton County - Board of Equalization

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 Board of Equalization (Board) violated N.D.C.C. §§ 44-04-18 by
failing to respond to a record request.

FACTS PRESENTED

In June 2022, Ms. Jordan requested the Board's annual meeting publication notices via an
email to "all of the members of the [Board] also serving as Morton County Commissioners."
Commissioner Boehm handed a paper copy of the request to the Morton County Auditor, Ms.
Rhone. Ms. Jordan did not receive a response to the request.

ISSUE

Whether the Morton County Board of Equalization violated the open records law by failing to
provide records.

ANALYSIS

Public entities must either provide or deny requests for records within a reasonable time. Past
opinions issued by this office have stated, "[d]epending on the circumstances, a delay may be
appropriate for a number of reasons, including excising closed or confidential information,
consulting with an attorney when there is a reasonable doubt whether the records are open to
the public, or balancing other responsibilities of the public entity that demand immediate
attention."

Here, the Board acknowledges that the request "got overlooked and it was not fulfilled."
There is no indication the Board attempted to fulfill the request after this oversight was
brought to their attention. The Board must provide a response to a request for records.

CONCLUSION

The Board did not respond to a request for records in violation of open records law.

STEPS NEEDED TO REMEDY VIOLATION

The Board must respond to Ms. Jordan's request. The Board must provide the requested
records to Ms. Jordan, free of charge, if they exist. Further, the Board is advised to revisit the
open records requirements regarding timely responses to open records requests.

While I have every reason to expect the Board will remedy this situation, failure to take the
corrective measures described in this opinion within seven days of the date this opinion is
issued will result in mandatory costs, disbursements, and reasonable attorney fees if the
person requesting the opinion prevails in a civil action under N.D.C.C. § 44-04-21.2. Failure
to take these corrective measures may also result in personal liability for the person or persons
responsible for the noncompliance.

Attorney General

cc: Karen Jordan