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. The opinion allows short notice if the public and media are notified when the members are. Because the president decided to hold the meeting that day and no other District members 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 administer notice for a short-notice special meeting

The opinion holds that a special meeting may be called on short notice if the notice is provided to the public and the media at the same time the governing body's members are notified. The District president's decision to hold Special Meeting B was made the same day, no other District members were aware of the meeting before the announcement, and the District posted notice on the meeting location door and emailed the auditors and the local newspaper before the meeting began. The opinion found those steps satisfied N.D.C.C. § 44-04-20 on these facts.

If you sought records and the entity said it had no further responsive records

The opinion holds the District's response complied with N.D.C.C. § 44-04-18 because the District produced the responsive records it had and then confirmed there were no additional records, and "the public entity generally has no obligation to obtain records it does not have." The opinion notes the AG is required to take the facts given by the public entity.

Common questions

Q: Was five minutes of notice enough for this special meeting? A: Yes, on the facts the District gave the AG. The opinion says special meetings may be called on short notice if the public and media are notified when members are. On these facts, the District gave notice about five minutes before the meeting and the AG found compliance.

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 (a 2023 change requires website posting if the entity has a website). For special meetings, the entity must notify its official newspaper and media representatives who have asked to be notified.

Q: What has to be in the notice?
A: Date, time, location, and, if practicable, topics to be discussed. The District’s notice listed the topics to be considered, which the AG treated as sufficient here.

Q: If I ask for records and the entity says they don't have them, can I push? A: In this case, the AG relied on the District’s account that it had produced the responsive records and had no more to provide. The opinion says the AG must base opinions on the "facts given by the public entity."

Background and statutory framework

N.D.C.C. § 44-04-20 requires public entities to give notice of their meetings. 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: the opinion explains that an entity need not create or compile a record that does not exist and generally need not obtain records it does not have. The AG found this District compliant after it produced responsive records and confirmed that no additional ones existed.

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). 1 The purpose of the meeting was to approve election results and appoint new District officers.2 At approximately 6:40 p.m., the District president announced a second special meeting (Special Meeting B) would be held in 5 minutes.3 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. 4 At 6:45 p.m. the District conducted Special Meeting B during which they appointed a medical director and reviewed an ambulance service agreement. 5

The next day, Ambulance Resources, LLC, through its attorney, requested records from the District regarding Special Meeting B. 6 The District responded to the request on April 14 and April 28, 2022.

1
Letter from Justin Hagel, Att'y, Vogel Law Firm, to N.D. Att'y Gen. (May 4, 2022). See also, Notice, Special Meeting, Stanley Rural Ambulance Serv. Dist. (Apr. 5, 2022, 6:30 PM) and Email from Charlie Sorenson, President, Stanley Rural Ambulance Dist. , to Annique M.
Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (June 4, 2022, 1:53 AM).
2
Letter from Justin Hagel, Att' y, Vogel Law Firm, to N.D. Att'y Gen. (May 4, 2022). See also, Agenda, Special Meeting, Stanley Rural Ambulance Serv. Dist. (Apr. 5, 2022, 6:30 PM).
3
Letter from Justin Hagel, Att'y, Vogel Law Firm, to N.D. Att'y Gen. (May 4, 2022).
4
Email from Charlie Sorenson, President, Stanley Rural Ambulance Dist. , to Annique M.
Lockard, Assistant Att' y Gen. , Off. of Att' y Gen. (June 4, 2022, 1:53 AM).
5
Id.
6 Letter from Justin Hagel, Att'y, Vogel Law Firm, to N.D. Att'y Gen. (May 4, 2022).

OPEN RECORDS AND MEETINGS OPINION 2024-O-07
September 11, 2024
Page 2

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. 7 Meeting notices must include "the date, time, and location of the meeting, and, if practicable, the topics to be discussed." 8 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. 9 Meeting notices also must be filed in the appropriate office or, at the time this meeting occurred, 10 posted on the public entity's website. 11 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. 12

Opinions issued by this office must be based on the "facts given by the public entity." 13 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. 14 The Special Meeting B notice included the date, time (hand-written), location of the meeting, and an agenda of topics to be considered. 15 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

7
N.D.C.C. § 44-04-20(1).
8
N.D.C.C . § 44-04-20(2); see also N.D.A.G. 2021-0-10.
9
N.D.C.C. § 44-04-20(4); see also N.D.A.G. 2021-0-10, citing N.D.A.G. 2018-0-28 and N.D.A.G. 2018-0-04; N.D.A.G. 2022-0-12; N.D.A.G. 2022-0-11. 10 N.D.C.C. § 44-04-20(3); S.B. 2232, 2023 N.D. Leg. changed the law and now, if a public entity ·has a website, the notice must be on the website. 11 N.D.C.C . § 44-04-20(4); see also N.D.A.G. 2022-0-12, citing N.D.A.G. 2021-0-07; N.D.A.G. 2022-0-1 1. 12 N.D.C.C. § 44-04-20(6); see also N.D.A.G. 202 1-0-10, citing N.D .C.C. § 44-04-20(6) and N.D.A.G. 2018-0-28 ; N.D.A.G. 2022-0-12; N.D.A.G. 2022-0-11. 13 N .D.C.C. § 44-04-21.1(1); see also N.D.A.G. 2022-0-12, N.D.A.G. 2022-0-11 ; N.D.A.G. 2021-0-10. 14 Email from Charlie Sorenson, President, Stanley Rural Ambulance Dist., to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (June 4, 2022, 1:53 AM). 15 Notice, Special Meeting, Stanley Rural Ambulance Dist. (Apr. 5, 2022, 6:45 PM).

OPEN RECORDS AND MEETINGS OPINION 2024-O-07
September 11, 2024
Page 3

County Auditor, Stanley City Auditor, and the Mountrail County Promoter before the second meeting started. 16 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. 17 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." 18 "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." 19 "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." 20

The District, through its attorney, responded to the request for records on April 14 and April 28, 2022. 21 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." 22 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."23 This office is required by law to take the "facts given by the public entity." 24 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.

16
Email from Charlie Sorenson, President, Stanley Rural Ambulance Dist., to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (June 4, 2022, 1:53 AM). 17 N.D.A.G. 2011-0-01. 18 N.D.C.C. § 44-04-18; see also, N.D.A.G. 2019-0-13; N.D.A.G. 2018-0-27; N.D.A.G. 2014- 0-22. 19 N.D.A.G. 2014-0-22, citing N.D.C.C. § 44-04-18(3), N.D.A.G. 2005-0-11; N.D.A.G. 2003- 0-09; N.D.A.G. 2003-0-01 ; see also N.D.A.G. 2019-0-13; N.D.A.G. 2018-0-27. 20 N.D.A.G. 2019-0-13, citing N.D.C.C. § 44-04-17.1(16); N.D.A.G. 2014-0-22; N.D.A.G. 2010-0-02 ; N.D.A.G. 2004-0-05. 21 Email from Chris Nyhus, Att'y, Nyhus Law Firm, to Jesse Walstad, Att'y, Vogel Law Firm (Apr. 14, 2022, 5:02 PM) and Letter from Chris Nyhus, Att'y, Nyhus Law Firm, to Jesse Walstad, Att'y, Vogel Law Firm (Apr. 28, 2022). 22 Email from Chris Nyhus, Att'y, Nyhus Law Firm, to Jesse Walstad, Att'y, Vogel Law Firm (Apr. 14, 2022, 5:02 PM). 23 Letter from Chris Nyhus, Att'y, Nyhus Law Firm, to Jesse Walstad, Att'y, Vogel Law Firm (Apr. 28, 2022). 24 N.D.C.C. § 44-04-21.1(1).

OPEN RECORDS AND MEETINGS OPINION 2024-O-07
September 11 , 2024
Page 4

CONCLUSIONS

1. The Stanley Rural Ambulance District properly noticed its April 5, 2022, Special
   Meeting Bin 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)