Can a North Dakota public body call a special meeting on five minutes' notice and still comply with open meetings law?

Plain-English summary

The Stanley Rural Ambulance District wrapped up one special meeting and the president, on the spot, decided the board should hold a second special meeting five minutes later to appoint a medical director and review a service contract. He posted notice on the building's front door, emailed the county auditors and the local newspaper, and conducted the meeting at 6:45 p.m. Ambulance Resources, LLC, through its attorney, asked the AG whether five minutes was enough warning.

The AG concluded the District complied with the open meetings law. North Dakota's notice statute requires that the public, the official newspaper, and any media reps who asked to be notified get notice at the same time the board members do. There's no minimum lead time. Because the president decided to hold the meeting that day, no one had earlier notice, and the public got the same notice everyone else got, the District satisfied N.D.C.C. § 44-04-20.

The AG also found the District's records response complied with the law because it produced everything responsive that existed and the public entity is not required to create records it doesn't have.

What this means for you

If you serve on a board or commission

Short-notice special meetings are legal in North Dakota, but only if you actually didn't know about the topic earlier. The "everyone gets notice at the same time" rule means you can't email your fellow members at 9 a.m. and then post a 6 p.m. public notice; that's not simultaneous. If the decision to meet truly arises during another meeting, posting notice immediately, emailing the official newspaper, and putting a sign on the meeting location are the core moves. Include date, time, location, and an agenda specific enough that the public knows what you'll discuss.

If you watch a public body and think a meeting was sneaked in

Check whether the members got notice before the public did. If a board member was emailed at noon about a 5 p.m. meeting and the public notice didn't go up until 4:55 p.m., that's the violation. The five-minute window itself isn't the problem; uneven notice is.

If you request records and get a "we don't have it" answer

The law does not require an entity to create or compile records that don't exist. A response saying "we produced what we have, and there's nothing else" is acceptable as long as it's truthful. If you have a basis to believe more records exist, document why and request an AG opinion under N.D.C.C. § 44-04-21.1.

Common questions

Q: Is there a minimum amount of advance notice for a special meeting in North Dakota?
A: No. The statute requires notice be given to the public and media at the same time members are notified. If the decision to hold the meeting is made on the spot, "the same time" can be just minutes before the meeting starts.

Q: Where does the notice have to be posted?
A: At the meeting location on the day of the meeting, at the entity's principal office if it has one, and on the entity's website (this became mandatory in 2023; before that it was optional). For special meetings, the entity also has to email the official newspaper and any media reps who asked to be notified.

Q: What has to be in the notice?
A: Date, time, location, and the topics to be discussed. For special meetings, vague agenda items like "other business" or "personnel matter" are not enough; you have to be specific about what will actually come up.

Q: If I ask for records and the entity says they don't have them, can I push?
A: You can ask the AG to verify under N.D.C.C. § 44-04-21.1, but the AG is required by statute to take "the facts given by the public entity." If they say records don't exist, the AG will accept that absent contradicting evidence.

Background and statutory framework

North Dakota's open meetings law is built on the constitutional right of access in N.D. Const. art. XI, § 5. The implementing statute, N.D.C.C. § 44-04-20, requires meetings of public entities to be open and noticed. For special meetings, subsection (6) sets the notice rule: provided to the official newspaper and to media reps who asked to be notified, at the same time as board members.

The open records statute, N.D.C.C. § 44-04-18, runs in parallel: records the entity actually has are public. Subsection (3) confirms there is no duty to create or compile records that don't exist. AG opinions interpreting these provisions, including 2014-O-22 and 2019-O-13, have consistently held that a truthful "no responsive records" answer is compliance, not violation.

Citations and references

Statutes:
- N.D.C.C. ch. 44-04 (Public records and meetings)

Source

• Landing page: https://attorneygeneral.nd.gov/stanley-rural-ambulance-district-properly-noticed-a-special-meeting-and-responded-to-a-request-for-records/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2024/09/2024-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
2024-O-07

DATE ISSUED: September 11, 2024

ISSUED TO: Stanley Rural Ambulance District

CITIZEN'S REQUEST FOR OPINION

Justin Hagel requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether Stanley Rural Ambulance District violated N.D.C.C. §§ 44-04-20 and 44-04-18 by failing to properly notice a special meeting and responding improperly to a request for records.

FACTS PRESENTED

On April 5, 2022, at 6:30 p.m., the Stanley Rural Ambulance District (District) held a special meeting (Special Meeting A). The purpose of the meeting was to approve election results and appoint new District officers. At approximately 6:40 p.m., the District president announced a second special meeting (Special Meeting B) would be held in 5 minutes. The president posted notice of Special Meeting B on the entrance door of the ambulance building and e-mailed the auditors and the county newspaper prior to the start of the meeting. At 6:45 p.m. the District conducted Special Meeting B during which they appointed a medical director and reviewed an ambulance service agreement.

The next day, Ambulance Resources, LLC, through its attorney, requested records from the District regarding Special Meeting B. The District responded to the request on April 14 and April 28, 2022.

ISSUES

1. Whether the Stanley Rural Ambulance District properly noticed its Special Meeting B on April 5, 2022, in substantial compliance with N.D.C.C. § 44-04-20.

2. Whether the Stanley Rural Ambulance District's response to a request for records was in compliance with N.D.C.C. § 44-04-18.

ANALYSIS

Issue 1

The public must be notified of all meetings of a public entity. Meeting notices must include "the date, time, and location of the meeting, and, if practicable, the topics to be discussed." The notice "must be posted at the principal office of the governing body holding the meeting, if [one] exists, and at the location of the meeting on the day of the meeting." Meeting notices also must be filed in the appropriate office or, at the time this meeting occurred, posted on the public entity's website. For special meetings, notice must be provided to the public entity's official newspaper and to any representatives of the news media asking to be notified of the special meeting.

Opinions issued by this office must be based on the "facts given by the public entity." According to the District president, his decision to hold Special Meeting B was made the same day Special Meeting A was held, April 5, 2022. He relays that no other District members were aware of the second special meeting before his announcement. The Special Meeting B notice included the date, time (hand-written), location of the meeting, and an agenda of topics to be considered. He further stated the Special Meeting B notice was posted "on the exterior door of the ambulance building, where the meeting was to be held" and was emailed to the Mountrail County Auditor, Stanley City Auditor, and the Mountrail County Promoter before the second meeting started. Special meetings may be called upon short notice as long as the notice is provided to the public and the media at the same time the governing body's members are notified. Therefore, it is my opinion the District complied with the notice requirements of N.D.C.C. § 44-04-20 and provided proper notice of its April 5, 2022, Special Meeting B.

Issue 2

"Except as otherwise specifically provided by law, all records of a public entity are public records, open and accessible for inspection during reasonable office hours." "The open records law is limited to records in the possession of a public entity and a public entity is not required to create or compile a record that does not exist." "Thus, the open records law is limited to records in the possession of a public entity and the public entity generally has no obligation to obtain records it does not have."

The District, through its attorney, responded to the request for records on April 14 and April 28, 2022. On April 14, 2022, the District's attorney provided responsive documents and stated "I am told that there are no other documents that are responsive to this request." The District continued to search for more documents until the April 28, 2022, response wherein the District's attorney confirmed "all my client's responsive documents were produced on April 14th." This office is required by law to take the "facts given by the public entity." Here, the District provided the responsive records and promptly relayed they had no additional records to provide. Therefore, it is my opinion the District's response was consistent with open records laws.

CONCLUSIONS

1. The Stanley Rural Ambulance District properly noticed its April 5, 2022, Special Meeting B in substantial compliance with N.D.C.C. § 44-04-20.

2. The Stanley Rural Ambulance District's response to a request for records was in compliance with N.D.C.C. § 44-04-18 because no additional records responsive to the request existed.

AML/mjh
cc: Jesse Walstad (via e-mail)