ND 2024-O-08 2024-09-11

If a public agency in North Dakota tells me they don't have any more records and I think they're holding back, what can I do?

Short answer: The Stanley Rural Ambulance District turned over a screenshot and a link, then repeatedly told Adam Buss there were no other responsive records. The AG concluded that's compliance with open records law. Public entities don't have to produce records they don't have, can't be forced to disclose 'sources of information' that aren't recorded, and the AG is statutorily required to accept the entity's representation about what exists.

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 AG opinions are persuasive authority but not binding precedent.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

Adam Buss asked the Stanley Rural Ambulance District for records about reports the board had received concerning his alleged criminal activity. The District's attorney sent him what they had: a screenshot of a text message between two board members and a link a board member had sent about Wisconsin criminal records (which turned out to be a different "Adam J. Buss"). On the request for the source of the information, the District responded that it had no further records. Buss kept asking, the District kept saying nothing else existed, and Buss filed a request for an AG opinion.

The AG sided with the District. Open records law applies to records the entity actually possesses. There's no duty to track down records the entity doesn't have, and unrecorded thought processes (like a board member's mental impressions of who told them what) aren't "records" at all. The AG must accept the entity's representation about what exists. The District's response complied.

What this means for you

If you're requesting records and getting "we don't have it"

The North Dakota AG is required by statute to accept the public entity's representation about what records exist. That means a "we don't have anything else" answer will hold up unless you can produce hard evidence (an email between officials referencing a record that wasn't disclosed, a meeting minutes line item describing a document, etc.) showing more must exist. Bare suspicion doesn't move the needle.

If you handle records requests and a requester won't accept "no more"

You don't have to keep responding to the same question once you've told the requester there are no further records. Document each search, tell the requester clearly what you found and what you don't have, and you've met your duty. If they ask again, a short reply pointing to the prior response is enough.

If your request is for "the source" of an oral statement

The open records law doesn't reach unrecorded thought processes or mental impressions. If a board member heard something at a coffee shop, the board member's memory isn't a record. Reframe your request as "any documents, emails, or texts referencing X" rather than "tell me where you heard this."

Common questions

Q: Does an entity have to ask its members to look at their personal devices for records?
A: The records have to be in the possession of the public entity or its agent. AG opinions have applied this expansively to records held in personal email when the official is acting in their public role. But a member's recollection of who told them something verbally is not a record at all.

Q: What if I can prove the entity is lying about having records?
A: Provide that evidence to the AG with your N.D.C.C. § 44-04-21.1 request. The AG accepts the entity's word in the absence of contradicting evidence, but if you supply contradicting evidence, the AG will weigh it.

Q: Can the entity be forced to investigate or produce sources of information?
A: No. Open records law is about records, not interrogation. The board member's "source of information" is not a record unless it's documented somewhere.

Q: What's the practical takeaway from this opinion?
A: A public entity meets its duty by searching its records, producing what's responsive, and stating clearly that nothing else exists. Repeated requests for the same nonexistent records don't change that.

Background and statutory framework

N.D.C.C. § 44-04-18(1) opens "all records of a public entity" for public inspection. The definition of "record" in N.D.C.C. § 44-04-17.1(16) is "recorded information of any kind" and explicitly excludes "unrecorded thought processes or mental impressions." Subsection (3) of § 44-04-18 limits the duty to records the entity already has.

When the AG reviews a complaint under N.D.C.C. § 44-04-21.1, subsection (1) requires the office to base its opinion on the facts the public entity provides. That deferential standard, combined with the limit to actual records, means a "we have no more records" answer is generally a complete defense.

Citations and references

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

Source

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-08

DATE ISSUED: September 11, 2024

ISSUED TO: Stanley Rural Ambulance District

CITIZEN'S REQUEST FOR OPINION

Adam Buss requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the Stanley Rural Ambulance District (District) violated N.D.C.C. § 44-04-18 by failing to provide records.

FACTS PRESENTED

On March 10, 2022, Mr. Buss sent an email to Don Giese, then President of the District, requesting the following records:

... [R]ecords in regard to notification of suspected criminal activity and or arrests of one Adam J[.] Buss made to Stanley Ambulance Service or any of its board members in or around [M]ay of 2021.
- Records requested including any and all notification and communication regarding above via email, text messages and included attachments or documents, in person or over the telephone including dates and times when possible.
- First member of Stanley Ambulance Service board to be notified as well as that individual's source of information.
- Results of any investigation and outcomes.

Christopher Nyhus, the attorney for the District, responded to Mr. Buss's request, by letter, on April 4, 2022. The responsive records provided to Mr. Buss were a screenshot of a text message between the board member and the president of the board at the time, and a link sent from the same board member to the president to criminal records in Wisconsin for an "Adam John Buss." In the District's response to Mr. Buss, Attorney Nyhus, clearly stated "[u]pon further inspection, it was discovered yet that same day that despite being identical names, and both individuals being from Wisconsin, the person with the enclosed criminal record was a different person than yourself."

On April 25, 2022, Mr. Buss emailed the District with a second request for the same records. Attorney Nyhus immediately emailed Mr. Buss to inform him that the District had provided the records to his initial request by mail using the mailing address he provided. Attorney Nyhus also attached a copy of the records previously provided by mail to Mr. Buss. On April 27, 2022, Mr. Buss responded to Attorney Nyhus contending that "not all information" he requested had been provided. Specifically, Mr. Buss wanted the board member's "source of information." On at least three occasions after that, Attorney Nyhus informed Mr. Buss that the District did not have any additional records to provide. However, Mr. Buss believes the District has additional documents that they are not providing.

ISSUE

Whether the District's response violated the open records law.

ANALYSIS

North Dakota open records law applies to all records "in the possession of a public entity." A record means "recorded information of any kind." The legal definition of record specifically "does not include unrecorded thought processes or mental impressions." Public entities are not required to "create or compile" records that do not exist. Further, "... the public entity generally has no obligation to obtain records it does not have."

Here, Mr. Buss requested records and information regarding criminal history records. The District promptly provided the responsive records and an explanation that they had determined the criminal history was for another Adam J. Buss. The District had no duty to respond to Mr. Buss's requests for information regarding who had informed the board member of the criminal history and, multiple times, informed Mr. Buss that they had no additional records to provide. This office is required by law to accept the "facts given by the public entity." Public entities are only responsible for providing records that exist and that they have in their possession. Therefore, the District did not err in its responses to Mr. Buss that no additional records existed.

CONCLUSION

The District's response that no additional records existed complied with open records law.

AML/RS/mjh
cc: Adam Buss