Can a North Dakota agency refuse to give me records because of an old unpaid invoice if I've already sent them a check that they didn't cash?

Plain-English summary

S. Paul Jordan and the Mandan Park District had a long history of records disputes. The District required Jordan to make all future requests in person and refused to fill any new requests until he paid a $25 invoice from a prior request. In January 2021, Jordan mailed the District a personal check for the full $25 with "theft if cashed/deposited" written in the memo line. On its attorney's advice, the District never cashed the check. In 2022 Jordan asked through the District's lawyer for a copy of an email containing board members' email addresses. The District refused, citing the unpaid balance.

The AG concluded the denial violated open records law on multiple grounds. First, an in-person-only requirement is not supported by North Dakota law; an initial request need not be made in person or in writing. Second, an entity cannot demand the requester's identity or motive. Third, while withholding records pending payment of a prior balance is permitted by N.D.C.C. § 44-04-18(2), Jordan had provided payment. The District's refusal to deposit the check did not undo the payment. Allowing an agency to refuse payment to keep an open records hold in place would let agencies circumvent the law procedurally, which the North Dakota Supreme Court and the AG have repeatedly rejected.

What this means for you

If you're a citizen who's been told you can't get records

You don't have to come in person. The North Dakota open records law allows verbal, written, or other reasonable forms of request. You don't have to give your name. You don't have to explain why you want the records. If an agency tells you any of those are required, that's a violation. If they say they're withholding records because of an unpaid invoice, you have a clear path: pay it (a personal check is fine), keep your records of payment, and request again.

If you handle records requests for a public entity

You can hold records pending payment of a past-due invoice; that's expressly allowed in N.D.C.C. § 44-04-18(2). But once the requester pays, the hold is over. You don't get to refuse the payment because the requester wrote something obnoxious in the memo line and then keep treating the balance as outstanding. If you have concerns about the validity of payment, deposit the check and pursue any separate dispute through normal channels. And if you genuinely think a requester's pattern of requests is disrupting essential functions, the only legitimate basis for declining is N.D.C.C. § 44-04-18(13), which has to be invoked specifically and in writing; it can't be done by silence or via a generic "burden" complaint.

If you're an attorney advising a public entity

The "circumvention" doctrine is firm in North Dakota law. Forum Publishing v. City of Fargo and a series of AG opinions have rejected procedural workarounds, even when the entity has facially neutral reasons. Counsel your client to deposit payments, keep clean records of denials and the legal basis cited, and never use an in-person requirement as a screening tool. The remedy in N.D.C.C. § 44-04-21.2 includes mandatory attorney fees if the requester prevails in court, and the responsible official can be personally liable.

Common questions

Q: Does an agency really have to take an open records request from someone they consider a problem requester?
A: Yes. The law gives essentially no latitude based on the requester's identity, motive, or history. The only exception is N.D.C.C. § 44-04-18(13), which lets the entity ask the AG for guidance when a pattern of requests genuinely disrupts essential functions. That's a structured process, not a self-help defense.

Q: Can the agency require requests to be in writing or in person?
A: No. An initial request need not be made in person or in writing. The agency can ask for written follow-up to clarify ambiguous requests, but it can't condition all access on a written or in-person request.

Q: What if the agency posts the records on its website?
A: The agency can direct the requester to the website rather than producing a copy. But this has to be communicated as the basis for the response. The Mandan Park District's email addresses were on its website, but the District never told Jordan that; it just refused to give him the email.

Q: What does "denial of records for an inaccurate reason" mean here?
A: AG opinions 2006-O-12 and 2004-O-11 establish that a denial that cites the wrong basis (or no basis at all) is itself a violation, even if a valid basis might have existed. Agencies have to write down the actual legal authority they're relying on.

Q: What was wrong with the memo line on the check?
A: Nothing legally. North Dakota authority (and federal bankruptcy precedent the AG cited from Spears Carpet Mills) says memo lines on personal checks are "helpful, but not required, and of no legal effect." The District was free to deposit the check; the memo line did not turn the deposit into theft.

Background and statutory framework

The constitutional foundation is N.D. Const. art. XI, § 6, which makes records of public entities open to the public unless specifically closed by law. The implementing statute is N.D.C.C. § 44-04-18. Subsection (2) lets the agency hold records until prior charges are paid. Subsection (7) requires denials to describe the legal authority. Subsection (13) is the disruption-of-essential-functions provision that the District never invoked.

The North Dakota Supreme Court rejected procedural circumvention of the open records law in Forum Publishing Co. v. City of Fargo, 391 N.W.2d 169 (N.D. 1986), holding the law could not be circumvented by delegating record-keeping to a third party. AG opinions have extended that reasoning to maintaining records on private computers (2008-O-07) and other workarounds.

The remedy comes from N.D.C.C. § 44-04-21.2: mandatory costs, disbursements, and reasonable attorney fees if the requester prevails in a civil action, plus possible personal liability for the responsible officials.

Citations and references

Statutes:
- N.D.C.C. ch. 44-04 (Public records and meetings)
- N.D. Const. art. XI, § 6 (right of access to public records)

Cases:
- Forum Publishing Co. v. City of Fargo, 391 N.W.2d 169 (N.D. 1986)
- In re Spears Carpet Mills, Inc., 86 B.R. 985 (Bankr. W.D. Ark. 1987)

Source

• Landing page: https://attorneygeneral.nd.gov/denial-of-records-for-an-improper-reason-is-a-violation-of-open-records-law/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2024/11/2024-O-10.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-10

DATE ISSUED: November 12, 2024

ISSUED TO: Mandan Park District

CITIZEN'S REQUEST FOR OPINION

S. Paul Jordan requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the Mandan Park District violated N.D.C.C. § 44-04-18 by improperly denying a request for records.

FACTS PRESENTED

Mr. Jordan and Mandan Park District (District) have an extensive open records history. Currently Mr. Jordan has an outstanding invoice for $25.00 to the District for previously requested records. Mr. Jordan was informed by letter on July 16, 2019, that all his records requests would need to be communicated to the District in person to verify the records requested and to accurately monitor the District's responses. Included in the letter was notice that Mr. Jordan could no longer request records via email, telephonically, or orally, and a reminder that Mr. Jordan had an outstanding invoice from a previous records request. Mr. Jordan was informed that any subsequent records requests would not be filled until his overdue charge was paid in full. On or about July 16, 2019, the District blocked the email of Mr. Jordan, after determining that his constant communications and record requests were disrupting their essential functions.

On January 21, 2021, Mr. Jordan provided a personal check to the District in the amount of $25.00. In the memo line he transcribed, "THEFT IF CASHED/DEPOSITED." Upon the advice of their attorney, the District never cashed this check. His overdue balance remains; his email is still blocked; and the status of his records request with the District is unchanged.

On July 24, 2022, Mr. Jordan sent an email to Cole Higlin, Director of the District, requesting, "a copy of the last email you sent to the Mandan Park Board that shows each of their email addresses." This email was never received by Mr. Higlin because Mr. Jordan's email address had been blocked. Later that day, Mr. Jordan emailed Mr. Arlen Ruff, the District's attorney, with the same records request. Mr. Ruff replied stating, "I refer your attention to the attached letter. Please make your request as set out therein. It's my understanding you still have an outstanding invoice with the Parks District." Within the letter attached to Mr. Ruff's email reply, is a statement to Mr. Jordan that none of his records requests will be fulfilled "[u]nless the outstanding invoice is paid." No records have been supplied to Mr. Jordan for his records request from August 2, 2022.

ISSUE

Whether the District properly denied the open records request because Mr. Jordan had overdue fees from previously requested records.

ANALYSIS

The District is a public entity as defined in North Dakota law and is therefore subject to North Dakota open records laws. "[A]ll records of a public entity are public records, open and accessible for inspection." In addition to these records being open to the public, the entity has the responsibility to provide access to these records to the public upon request, unless a legal exception applies. The requested record is an email containing the email addresses of the District's board, and, based on the information provided this office, does not contain information that would qualify as a legal exception. Although Mr. Jordan's initial request for records was never received by the District as his email address was blocked, the receipt of Mr. Jordan's request by their attorney, an agent of the District, satisfies a proper request for an open record.

The email requested was not provided to this office, but given the context of Mr. Jordan's request, the email addresses of the board members was the information he sought. All email addresses of the members of the Mandan Park Board are publicly available on the District's website. "[A] public entity is not required to provide a copy of a record that is available to the requester on the public entity's website or on the internet. The public entity shall notify the requester the record is available online and direct the requester to the website where the record can be accessed." In the correspondence with Mr. Jordan, however, the availability of the information on the website was not identified as a reason for denying his request.

"An initial request need not be made in person or in writing." The mandate from the District that Mr. Jordan make his requests in person, is not supported by North Dakota law. Additionally, North Dakota law states the entity, "may not ask for the motive or reason for requesting the records or for the identity of the person requesting public records." The requirement that Mr. Jordan personally request an open record, denies the requester anonymity as provided by statute.

In their many communications, the District did communicate to Mr. Jordan that his, "requests are becoming burdensome to the Mandan Parks District, and at times appear to be harassing Mandan Parks District personnel." Mr. Jordan's multiple requests may disrupt essential functions of the District, but a denial on these grounds needs to be specifically cited and supplied to the requester in writing pursuant to N.D.C.C. § 44-04-18(13). The District never cited this provision as their basis for denial of Mr. Jordan's repeated requests for records.

North Dakota law mandates that a denial of a records request must "describe the legal authority for the denial." The reason for denial provided to Mr. Jordan by the District expressly stated that he had unpaid fees. Denial based on unpaid fees is allowable by law; specifically, "[t]he public entity may withhold records pursuant to a request until such time as a requester provides payment for any outstanding balance for prior requests." Here, Mr. Jordan has provided payment for his past due balance, but the District did not cash the check provided, apparently because of Mr. Jordan's notations on the check.

It does not appear that the District refused to cash Mr. Jordan's check for the purpose of preventing access to public records. This office strongly advises public entities against doing so. Allowing an entity to refuse payment to avoid an open records obligation would effectively endorse a circumvention of open records laws. The North Dakota Supreme Court as well as this office have rejected circumvention of open records laws based on apparent procedural loopholes. Regardless of the reasons for the District's refusal to cash the check from Mr. Jordan, the District's denial of records became invalid on January 21, 2021, when Mr. Jordan provided a personal check for the entire amount owed. Previous opinions from this office have clarified that denial of a records request for an inaccurate reason is a violation of open records law. The decision by the District not to deposit Mr. Jordan's check for payment does not disqualify the payment provided, and the past due amount is no longer a sufficient reason to deny Mr. Jordan's request for records.

CONCLUSION

The District's denial of the records request violated North Dakota open records laws, as Mr. Jordan has provided payment for the past records requested.

STEPS NEEDED TO REMEDY VIOLATION

The District must respond to Mr. Jordan request, and they must provide the requested records to Mr. Jordan, free of charge. This office urges the District to revisit the open records laws and their responsibilities therein, anticipate further records requests from familiar requestors, and develop procedures to comply with North Dakota open records laws.

While I have every reason to expect the District 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.

Drew H. Wrigley
Attorney General

MEO/AML/mjh
cc: S. Paul Jordan