ND 2025-O-04 2025-03-06

How long can a North Dakota township take to respond to an open records request before the delay becomes a violation?

Short answer: Reasonable response is usually measured in hours or days, not weeks. A six-week delay was unreasonable, even when the township blamed the unexpected resignation of the treasurer who managed its email account.

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 AG opinions are persuasive authority but not binding precedent.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

Ron Loctao asked Harrison Township for meeting minutes by email in November 2022. The township did not respond. He emailed again in December. Still no response. After he asked the AG's office to step in, the township finally produced the records on January 6, 2023, more than six weeks after the original request.

The township's explanation was that its treasurer, who managed the email account, had unexpectedly resigned, and no one was checking the inbox. AG Drew Wrigley said that does not work as a defense. A public entity is responsible for monitoring its incoming correspondence and arranging coverage when staff turn over. The township could have set up an auto-reply, redirected the address, or assigned someone else to the email account. None of that happened.

Six weeks for the first request, and over a month for the second, was unreasonable under N.D.C.C. § 44-04-18. Reasonable response time is "usually measured in a few hours or days rather than weeks." The township violated open records law.

The opinion notes the township already fixed the underlying problem by assigning more than one person to oversee the email account, so no further corrective action was needed. The records were ultimately provided.

What this means for you

If you're a township or city auditor

If you have a single staff member responsible for incoming records requests, you have a single point of failure. When that person leaves, takes leave, or stops checking the inbox, the clock is still ticking on requests under § 44-04-18. Build in redundancy:

Assign at least two officials to the email account.
Set up an auto-reply with an alternative submission method when staff change.
Forward the email to a secondary monitored account.

A "reasonable" response is measured in hours or days. The opinion treats six weeks as clearly unreasonable, and prior AG opinions cited in the footnotes have held similar findings for delays of a month or more.

If you're a citizen requesting records from a small public entity

You do not have to chase the entity. Once you've made the request, you can wait a reasonable time and then file a complaint with the AG's office under N.D.C.C. § 44-04-21.1. The AG's office can issue an opinion, and a public entity that ignores AG opinions risks litigation and loss of legal immunity.

If the entity claims they did not see your email, that is the entity's problem, not yours. The AG's office has held that the requester is "not required to contact the entity again to find out when the records will be provided."

If you're an attorney advising a small political subdivision

These cases come up most often in townships and small districts where one volunteer or part-time staff handles correspondence. Have a conversation with your client about coverage planning before the violation happens. If a violation has already occurred, the standard remedy is to fix the underlying gap and provide the records. A self-corrective action (as Harrison Township took here) can avoid further enforcement.

Common questions

Q: What is "reasonable" under N.D.C.C. § 44-04-18?
A: The opinion describes it as "usually measured in a few hours or days rather than weeks." Reasonableness can stretch when the request involves a high volume of records, complex review, or staff with competing emergency duties. None of those applied here.

Q: Can a small township argue that staff turnover excuses delay?
A: No. The entity, not any individual, holds the duty. If the person responsible for monitoring requests leaves, the entity must reassign the duty. Nothing in this opinion suggests a "transition period" would have worked as an excuse.

Q: What happens if the township does not comply with the AG's opinion?
A: A public entity that fails to follow an open records or meetings AG opinion can lose legal immunity for civil damages and may face attorney's fees in subsequent litigation. The opinion itself does not impose a penalty, but it makes future enforcement easier.

Q: Can a township avoid the duty by simply not having an email?
A: No. The opinion notes the email address Mr. Loctao used was the township's official mailing address. Whatever address the entity advertises as official, that's the address the entity must monitor. Entities cannot pick and choose which channels to honor.

Citations

N.D.C.C. § 44-04-18, reasonable response time for records requests
N.D.C.C. § 44-04-21.1, citizen's right to request AG opinion
N.D.A.G. 2024-O-11, requester not required to follow up
N.D.A.G. 2022-O-12, month-plus delay unreasonable
N.D.A.G. 2008-O-12: month delay for township minutes unreasonable

Source

Original opinion text

STATE OF NORTH DAKOTA
OFFICE OF ATTORNEY GENERAL
Drew H. Wrigley, ATTORNEY GENERAL

OPEN RECORDS AND MEETINGS OPINION 2025-O-04
DATE ISSUED: March 6, 2025
ISSUED TO: Harrison Township

CITIZEN'S REQUEST FOR OPINION

Ron Loctao requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the Harrison Township violated N.D.C.C. § 44-04-18 by failing to properly respond to a request for records within a reasonable time.

FACTS PRESENTED

Ron Loctao sent an email to Harrison Township (Township) on November 23, 2022, requesting a copy of the Township's meeting minutes from January 2022 to August 2022. After receiving no response to his initial request, Mr. Loctao sent a second email to the Township on December 4, 2022, requesting meeting minutes from January 2022 to December 2022. Again after receiving no response from the Township, Mr. Loctao contacted this office for an opinion.

On December 23, 2022, this office reached out to the Township regarding Mr. Loctao's records request. The Township informed this office that the Township's official mailing address is the email address where Mr. Loctao sent his records request. The Township explained the delay in responding to Mr. Loctao was caused by the unexpected resignation of the Township's treasurer who was responsible for overseeing the email account. The Township provided the minutes electronically to Mr. Loctao on January 6, 2023.

ISSUE

Whether the Harrison Township violated N.D.C.C. § 44-04-18 by failing to respond to a records request within a reasonable time.

ANALYSIS

A township is a political subdivision and is therefore a "public entity" subject to the open records and meetings law. A public entity must respond to an open records request within a reasonable time by either providing the requested records or by explaining the legal authority for not granting the request. The law does not usually require an immediate response, however, the delay permitted will usually be measured in a few hours or days rather than weeks. Depending on the circumstances, a delay may be reasonable for a variety of reasons, including "the number of records requested, reviewing large volumes of documents to respond to a request, excising closed or confidential information, availability and workload of staff who can respond to the request, or balancing other responsibilities of the public entity that demand immediate attention." However once a request for records is made, "it is the responsibility of the public entity to respond to the request within a reasonable time and the requester is not required to contact the entity again to find out when the records will be provided or made available."

On November 23, 2022, Mr. Loctao sent an email to the Township requesting meeting minutes from January through August. When the Township did not respond, Mr. Loctao sent a follow up email on December 4, 2022, requesting meeting minutes from January through December. The Township did not provide the requested records until January 6, 2023. The Township explains that the delay was caused by "the unexpected resignation of the [Township's] [t]reasurer, who was responsible for overseeing the email [account]." However, a public entity is responsible for timely reviewing its incoming correspondence and checking for records requests. For example, the Township could have made other arrangements for managing its email account or set up an automated reply message with an alternative method for submitting requests to the Township after the treasurer's resignation. It is not the requestor's obligation to again contact the entity to find out when the records will be provided or made available. The Township has provided no additional justification for the delay. Under these circumstances, a six-week delay before responding to Mr. Loctao's first request and over a month delay for the second request is unreasonable.

Accordingly, it is my opinion the Township violated the open records law by failing to respond to an appropriate records request within a reasonable time.

CONCLUSION

The Harrison Township violated N.D.C.C. § 44-04-18 by failing to respond to a records request within a reasonable time.

STEPS NEEDED TO REMEDY VIOLATIONS

The Township has already taken steps to rectify its mistake by assigning more than one position to oversee the Township's email account. Mr. Loctao has received all the requested records, therefore no further corrective measures required.

Drew H. Wrigley
Attorney General