ND 2025-O-07 2025-03-07

What can a North Dakota school district legally charge for fulfilling an open records request, and what fees are off-limits?

Short answer: A North Dakota school district can charge up to $25 per hour for locating records and excising confidential information, but only after the first hour of each. It cannot charge for mileage, travel time, organizing emails, saving files, or talking about the request. Hiring an outside person at $50 an hour does not let the district pass on those rates.

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 AG opinions are persuasive authority but not binding precedent.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

Dr. Andrew Hennessey asked Milnor Public School District No. 2 for emails and texts that mentioned him. The Superintendent, Dr. Chris Larson, decided not to do the search himself. He hired an outside person, Devi Engelstad, at $50 per hour plus mileage. She spent six hours pulling emails and screenshots. The District then billed Dr. Hennessey $500: $95 for mileage, $105 for travel time, and $300 labeled as "IT service."

AG Drew Wrigley said almost all of that was illegal.

Under N.D.C.C. § 44-04-18, a public entity can charge for two specific things: locating records (up to $25 per hour, excluding the first hour) and excising confidential information (same cap, same first-hour exclusion). A separate provision allows passing on the actual cost of "extensive use of information technology resources," but that means data processing hardware, software, or genuine technology support services that the agency lacks the in-house ability to perform. It does not cover an outside contractor opening someone's email account and copying messages, especially when the Superintendent admitted he could have done the search himself or had the District's own IT staff do it.

So the District's bill failed on multiple counts. Mileage and travel time are not authorized at all. Time spent talking with the contractor about the request, organizing emails, and saving them to OneDrive are not chargeable. The first hour of locating records cannot be billed. And nothing about the work qualified as "extensive IT resources" within the statute's meaning.

The remedy ordered is straightforward. The District has to recompute the bill using only the time actually spent locating records (minus the first hour) and reviewing for redactions (minus the first hour, if review was for that purpose), capped at $25 per hour each. If the District does not fix this within seven days, the requester can file a civil action and recover costs and attorney fees, and the individuals responsible could face personal liability.

What this means for you

If you administer records requests for a school district or other public entity

Three things to bake into your fee schedule. First, the meter starts after one hour of locating records, and another full hour can be excluded for the redaction phase. Many entities forget the second exclusion. Second, $25 per hour is a statutory cap, not a target. You cannot pass through actual labor cost just because your contractor charges more. Third, "IT resources" under N.D.C.C. § 44-04-18(3) covers things you cannot do in-house (software the entity does not own, vendor-only data extraction). It does not cover paying a friend to open the boss's inbox.

If you're an employee asking for records about yourself

You have the same rights any citizen does. The District here treated Dr. Hennessey's request like a routine open records matter, which is correct procedure. If your employer quotes a high fee, ask them to itemize how the time breaks down between (1) actual search and (2) other tasks that the AG has said are not chargeable: organizing files, transferring records to folders, internal discussion about your request, and review for responsiveness. Tasks in category 2 cannot be billed.

If you're a journalist, lawyer, or researcher requesting school district records

You can challenge inflated estimates before paying. The AG's office accepts opinion requests under N.D.C.C. § 44-04-21.1, and the entity has a strong incentive to settle a fee dispute rather than face a published opinion. If you do pay an excessive fee under protest, the corrective remedy in this opinion (recalculate and refund) is the standard outcome.

If you advise public entities on records compliance

The Superintendent's admission that he could have done the search himself was the linchpin here. Counsel for public entities should be careful about hiring outside help and then trying to recover the cost. The "extensive IT resources" exception is narrow. If you genuinely need a vendor (because the records are on a system the entity does not control), document why in-house staff cannot do the work, and price the service before agreeing.

Common questions

Q: What is the maximum North Dakota lets a public entity charge per hour for records?
A: $25 per hour for locating records, and another $25 per hour for excising confidential information. Both rates exclude the first hour of work. So a one-hour search is free.

Q: Can mileage and travel time be added to the bill?
A: No. N.D.C.C. § 44-04-18(2) does not authorize mileage or travel time. The statute names two cost categories. Anything outside them cannot be billed.

Q: When can a public entity charge actual cost instead of the $25 cap?
A: Only when the records require "extensive use of information technology resources" (more than one hour of IT resources to produce) and only for true IT support: software, hardware, or vendor services the entity does not have the capacity to perform. Hiring a contractor to do work the staff could have done does not qualify.

Q: What about charging for organizing the records or saving them to a folder?
A: Not allowed. The AG has previously held that "gathering, copying, organizing, forwarding, scanning, and printing the records" and "saving records to a zip drive" are not chargeable. Same applies to time spent discussing the request.

Q: What if the public entity already charged me too much?
A: The standard remedy is recomputation and refund. The District here was ordered to calculate the actual time spent locating records (minus the first hour) and excising confidential information (minus the first hour, if applicable) at $25 per hour, and bill only that amount. If a public entity refuses to comply, the requester can sue under N.D.C.C. § 44-04-21.2 and recover costs and attorney fees.

Q: Can the entity make me pay before delivering the records?
A: An estimate is allowed, but the entity cannot use a fee dispute to indefinitely delay records. If the fee is being challenged, you can file for an AG opinion before paying, and you can sue if the dispute is not resolved.

Q: What if the person responsible for the violation refuses to fix it?
A: N.D.C.C. § 44-04-21.1(2) allows personal liability for the individuals responsible for noncompliance with an AG opinion within seven days, in addition to the entity's exposure to attorney fees.

Citations

N.D.C.C. § 44-04-17.1(7), definition of "information technology resources"
N.D.C.C. § 44-04-18, open records general rule
N.D.C.C. § 44-04-18(2), locating fee, excising fee, $25/hour cap
N.D.C.C. § 44-04-18(3), actual cost for extensive IT resources
N.D.C.C. § 44-04-21.1(2), personal liability for noncompliance
N.D.A.G. 2014-O-18, non-chargeable tasks (organizing, forwarding)
N.D.A.G. 2011-O-12, transfer of emails to folder not chargeable
N.D.A.G. 2008-O-17, 2008-O-18: narrow scope of "IT resources" exception

Source

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

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

OPEN RECORDS AND MEETINGS OPINION 2025-O-07
DATE ISSUED: March 7, 2025
ISSUED TO: Milnor Public School District No. 2

CITIZEN'S REQUEST FOR OPINION

Dr. Andrew Hennessey requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the Milnor Public School District No. 2 violated N.D.C.C. § 44-04-18 by charging fees for copies of requested records not allowed by law.

FACTS PRESENTED

On June 25, 2022, Dr. Andrew Hennessey sent an open records request to Dr. Chris Larson, Superintendent of Milnor Public School District No. 2 (District). Specifically, Dr. Hennessey requested "any emails, texts, etc., that [Dr. Larson] had used to communicate information to another person or persons, regarding [Dr. Hennessey]" from the beginning of Dr. Hennessey's employment to the time of the request. Dr. Larson elected to hire Devi Engelstad to complete the search for the requested records due to her "technology background" and because "she was off work/available during that time of the summer." Ms. Engelstad quoted an amount of fifty dollars per hour, plus travel time, and mileage for her services. Dr. Larson sent a cost estimate of five hundred dollars to Dr. Hennessey which, according to the District, he accepted. On June 20, 2022, Ms. Engelstad completed the search and on July 20, 2022, provided an invoice to the District with the following breakdown of charges:

Mileage (158 miles round trip): $95.00
Travel time (3 hours): $105.00
IT service: $300.00
Total Due: $500.00

Once Dr. Hennessey received the invoice for payment, he requested an opinion from this office asking whether the District violated the open records laws by charging fees not allowed by law. In the District's response to a request for information from this office, Dr. Larson explained it took Ms. Engelstad six hours to locate the records on his computer and cell phone. In its explanation regarding a breakdown for the charges of "IT service," Dr. Larson stated Ms. Engelstad arrived at 9:00 a.m. to locate the records. Dr. Larson then reviewed the open records request with Ms. Engelstad and "discussed how to most efficiently accomplish the [search]." Dr. Larson logged into his email account after which Ms. Engelstad began searching and saving the emails responsive to the records request. According to Dr. Larson, Ms. Engelstad went through his email folders and created several batches of emails that fit the scope of the request. Dr. Larson then reviewed the emails in the early afternoon. Dr. Larson then gave his cellphone and passcode to Ms. Engelstad so she could locate text messages responsive to the request. Ms. Engelstad took screenshots of information that fit the scope of the request and saved them into a OneDrive folder. Dr. Larson then reviewed the folder. Ms. Engelstad completed her work around 3:00 p.m. and provided an invoice for a total cost of $500 for her services. Dr. Larson admits he could have completed the search himself or had the District's IT person locate the records.

The District's search resulted in approximately "[h]undreds, if not thousands" of pages of records responsive to Dr. Hennessey's request. According to Dr. Larson, none of the records required any redactions of confidential or exempt information.

ISSUE

Whether the fees charged by the Milnor Public School District in responding to an open record request were in violation of N.D.C.C. § 44-04-18.

ANALYSIS

"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." A public entity is allowed to charge a fee for responding to an open records request, if the charge is specifically authorized by law. Subsection 2 of N.D.C.C. § 44-04-18 authorizes three separate fees, one for copying public records, one for locating records if it takes the public entity longer than one hour to find the requested records, and one for excising confidential or closed information if it takes the public entity longer than one hour to excise such information from the records. A public entity may impose "a fee not exceeding twenty-five dollars per hour" for locating the records and for excising confidential or close information.

Additionally, subsection 3 of N.D.C.C. § 44-04-18, provides:

An electronic copy of a record must be provided upon request at no cost, other than costs allowed in subsection 2, except if the nature or volume of the public records requested to be accessed or provided requires extensive use of information technology resources, the agency may charge no more than the actual cost incurred for the extensive use of information technology resources incurred by the public entity.

"Extensive is defined as a request for copies of electronic records which take more than one hour of information technology resources to produce." The term "[i]nformation technology resources" includes "data processing hardware and software or technology support services necessary to facilitate a response to a request for electronic records."

The District attempts to justify its charges based on the actual cost incurred for the use of extensive informational technology resources. It does not appear that data processing hardware or software was used to produce the records, therefore, only "technology support services" would be applicable. However, the District fails to explain how searching through an email account and cell phone qualifies as "technology support services" necessary to facilitate a response to a records request when Dr. Larson admits he could have completed the search himself. Because no "information technology resources" were required to locate and copy the e-mails and text messages, the District is limited to charging the fees allowed under subsection 2 of N.D.C.C. § 44-04-18.

As previously stated above, a public entity "may impose a fee not exceeding twenty-five dollars per hour per request, excluding the initial hour, for locating records, including electronic records, if locating the records requires more than one hour." In addition, a public entity "may impose a fee not exceeding twenty-five dollars per hour per request, excluding the initial hour, for [time spent] excising confidential or closed [information]."

Here, the District charged Dr. Hennessey for mileage, travel time, and for an "IT service." Subsection 2 of N.D.C.C. § 44-04-18 does not allow a public entity to charge for mileage and travel time. When asked to detail the breakdown for the "IT service" charge, the District explained that it took Ms. Engelstad six hours to locate the records on Dr. Larson's computer and cell phone. Part of the six hours included time spent between Dr. Larson and Ms. Engelstad discussing the open records request. Additionally, the six hours included the time Ms. Engelstad spent organizing, forwarding, and saving the e-mails and saving text messages into a OneDrive folder. Lastly, the six hours included the time spent by Dr. Larson reviewing the e-mails and text messages.

This office previously determined that subsection 2 of N.D.C.C. § 44-04-18 allows a public entity to charge for time spent locating records but the open records law does not allow a public entity to charge for the time it spends "gathering, copying, organizing, forwarding, scanning, and printing the records," "saving records to a zip drive," or time spent "corresponding with others [regarding the] record requests." Likewise, the time spent between Dr. Larson and Ms. Engelstad conversing about the open records request and the time Ms. Engelstad spent organizing, forwarding, and saving the e-mails and text messages into a OneDrive folder are not allowable charges under N.D.C.C. § 44-04-18(2).

The District may charge a fee not exceeding twenty-five dollars per hour, excluding the initial hour, for time Ms. Engelstad spent locating the records and for the time spent excising confidential or closed information. It does not appear the District deducted the initial hour for the time Ms. Engelstad spent locating the records. Further, it is not clear whether Dr. Larson reviewed the emails and text messages to excise confidential or closed information or if he reviewed them to see if the records were responsive. If Dr. Larson reviewed the records to excise confidential or closed information, the District may charge a fee not exceeding twenty-five dollars per hour, excluding the initial hour. The District may not charge a fee if it took Dr. Larson less than an hour to review the records to excise confidential or closed information.

Accordingly, the District violated the open records law when it charged for mileage costs, travel time, time spent conversing about the open records request, and for time spent organizing, forwarding, and saving the e-mails and text messages into a OneDrive folder. It was a further violation of the open records law for the District to charge the initial hour for locating the records.

CONCLUSION

The Milnor Public School District No. 2 violated N.D.C.C. § 44-04-18 by charging fees for copies of requested records not allowed by law and by failing to exclude the initial hour for locating the records.

STEPS NEEDED TO REMEDY VIOLATIONS

The Milnor Public School District No. 2 may only impose those fees allowed by law. The District must calculate how much time was actually spent locating the records and how much time, if any, was spent reviewing the records for closed or confidential information. The District may charge twenty-five dollars per hour, minus the first hour, for locating the records and may charge twenty-five dollars per hour, minus the first hour, for excising closed or confidential information.

While I have every reason to believe that the Milnor Public School District No. 2 will fully comply with the directives of this opinion, failure to take the corrective measures described here within seven days of the date of this opinion 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. Such inaction may also result in personal liability for the person or persons responsible for the noncompliance.

Drew H. Wrigley
Attorney General

AMR/AML/mjh
cc: Dr. Andrew Hennessey