Can a private school bus company be forced to give up its bus routes under North Dakota's open records law?

Plain-English summary

Harlow's School Bus Service is a private corporation that contracts with Mandan Public Schools to bus students. A citizen, Karen Jordan, asked Harlow's directly for school bus routes that used a specific street near her home. Harlow's said no, citing student privacy concerns and pointing the requester to the school district as the right place to ask. The citizen requested an AG opinion, framing Harlow's refusal as an open records violation.

The AG concluded Harlow's didn't violate the open records law. The threshold question is whether Harlow's is itself a "public entity" subject to N.D.C.C. § 44-04-18. Under § 44-04-17.1(13)(c), a private organization is a public entity if it is "supported in whole or in part by public funds, or expending public funds." But § 44-04-17.1(10) draws a clear line: an organization is not "supported by public funds" if the public money it receives matches the fair market value of goods or services it provides. The opinion says the District pays Harlow's fair market value for its services. So Harlow's is not a public entity.

The opinion says District records in Harlow's possession may be subject to the open records law, and "the open-record law can[not] be circumvented by the delegation of a public duty to a third party." Forum Publ'g Co. v. City of Fargo. The District is responsible for responding to a request for its records held by an agent. The requester did not ask the District, even after Harlow's directed her there. The opinion does not decide whether the requested routes are subject to disclosure.

What this means for you

If you operate a private business that contracts with a North Dakota public entity

The opinion holds that an organization is not "supported by public funds" within the meaning of N.D.C.C. § 44-04-17.1(13)(c) when the public funds it receives match the fair market value of the goods or services it provides (N.D.C.C. § 44-04-17.1(10)). The opinion treats Harlow's contract with the Mandan Public School District as fair-market-value exchange and concludes Harlow's is not a public entity.

If you sought records that a contractor holds on behalf of a public entity

The opinion holds, citing Forum Publ'g Co. v. City of Fargo, 391 N.W.2d 169 (N.D. 1986), that records of a public entity do not lose their public-record status because they are in the possession of an independent contractor, and that the public entity is responsible for producing public records held by its agent. The opinion notes the requester here was told to send the request to the District but evidently did not, which the AG treated as supporting the no-violation finding as to Harlow's.

If you are deciding whether to direct a records request to the contractor or the public entity

The opinion holds the responding party is the public entity, not the contractor (unless the contractor itself is independently a public entity).

Common questions

Why isn't a private school bus company a "public entity"?

Because it provides services at fair market value rather than receiving public support. The statutory definition in § 44-04-17.1(10) excludes payments where "an organization or agency receives a benefit under any authorized economic development program" and exchanges of value where the goods and services have an equivalent fair market value to the public funds.

Does the opinion decide whether the District must disclose the routes?

No. The AG concluded that Harlow's was not a public entity and the requester did not ask the District. Footnote 21 says it was therefore unnecessary to decide whether the requested records are subject to the open records law.

What's the broader principle from Forum Publ'g?

A public entity can't avoid open records by delegating a public duty to a private contractor. The records remain public records, and the public entity has to retrieve them when a request comes in.

Does this opinion change anything for me as a public records requester?

Practical takeaway: when seeking public entity records held by a contractor, direct the request to the public entity responsible for responding.

Background and statutory framework

The North Dakota open records law starts with the public-entity definition in N.D.C.C. § 44-04-17.1(13). It has three branches: (a) governmental bodies of the state or political subdivisions, (b) groups of persons authorized to perform government functions, and (c) "[o]rganizations or agencies supported in whole or in part by public funds, or expending public funds." Branch (c) is what catches private contractors and nonprofits, but only if they meet the supported-by-public-funds test.

That test is in § 44-04-17.1(10): an organization is supported by public funds if it receives public funds "exceeding the fair market value of any goods or services given in exchange." Conversely, when public funds come in for fair-market-value services, the recipient is not a public entity.

The contractor-records issue is governed by Forum Publ'g Co. v. City of Fargo, 391 N.W.2d 169 (N.D. 1986), which held that the open records law cannot be evaded by delegating a public function to a private contractor. The records are still public records; they are just held in the contractor's files. The public entity has to produce them when asked. N.D.A.G. 2015-O-14 applied this rule to find an open records violation when an entity didn't produce records held by its agent.

The statutory definition of "records" includes "recorded information of any kind . . . which is in the possession of custody of a public entity or its agent." That language brings records held by agents into the public-records framework.

Citations

• N.D.C.C. § 44-04-17.1(10) (definition of "supported by public funds"; fair-market-value exception)
• N.D.C.C. § 44-04-17.1(13) (definition of "public entity")
• N.D.C.C. § 44-04-17.1(16) (definition of "records"; includes records held by agents)
• N.D.C.C. § 44-04-18(1) (default of openness for public records)
• Forum Publ'g Co. v. City of Fargo, 391 N.W.2d 169 (N.D. 1986) (cannot evade open records law by delegation)
• N.D.A.G. 98-F-19 (competitive bid process establishes fair market value)
• N.D.A.G. 98-O-23 (organizations receiving fair-market-value exchanges are not "supported by public funds")
• N.D.A.G. 2004-O-14 (fair-market-value exchange not "support")
• N.D.A.G. 2015-O-14 (violation when entity fails to produce records held by its agent)

Source

• Landing page: https://attorneygeneral.nd.gov/harlows-school-bus-service-is-not-a-public-entity-subject-to-open-meetings-laws-but-the-mandan-school-district-records-in-their-possession-may-be-subject-to-the-open-records-law-a-request-f/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2025/09/2025-O-13.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
2025-O-13

DATE ISSUED: September 10, 2025

ISSUED TO: Mandan Public School District

CITIZEN'S REQUEST FOR OPINION

Karen Jordan requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether Harlow's School Bus Service violated N.D.C.C. § 44-04-18 by refusing to release school bus routes associated with their contract with the Mandan Public School District.

FACTS PRESENTED

Harlow's School Bus Service (Harlow's) is a private corporation hired by the Mandan Public School District (District) to provide student transportation services, specifically busing students to and from school.[1] Harlow's provided the contract between it and the District to this office.[2] Harlow's handles the majority of the busing for the District, which listed on its website that it transports nearly 1,800 students over twenty-five routes each day.[3] The District pays Harlow's a fair market value to handle a majority of the transportation services.[4]

On May 18, 2022, Karen Jordan submitted a request through Harlow's website stating, "I request a copy of all school bus routes for the school buses that use 3rd St NW in Mandan between Collins Ave and 6th Ave NW."[5] According to Ms. Jordan, Harlow's replied on May 18, stating, "We cannot share route information as it contains the address, name and drop off locations of students that attend Mandan Public Schools."[6] Later on May 18, Harlow's, again replied to the email that afternoon stating:

Harlow's School Bus Service, Inc. is not a State or Federal entity. Asking to comply with Sec. 44-04-18 in this state's Century Code has no bearing. We do however try to assist in any way possible to public or parent requests as it pertains to their children or safety concerns. If you are looking for route detail, your request would need to go to the school district as we will not give that information out.[7]

On May 19, 2022, Ms. Jordan then sent a follow up email to Harlow's Vice President Jacob Iverson asking for an explanation of the denial. An automatic "out of office" reply was immediately sent back to her.[8] A final email was sent from Ms. Jordan to Mr. Iverson on May 26th. Ms. Jordan received no response to this email.[9] On June 9, 2022, Ms. Jordan wrote this office requesting an Attorney General opinion.[10]

ISSUE

Whether Harlow's violated the open records laws by not providing the records requested.

ANALYSIS

Unless otherwise specifically provided by law, records of public entities are open to the public.[11] A school district is a public entity,[12] but a private business contracting with a school district is not necessarily a public entity. Because the public records law applies only to public entities, the threshold issue is whether — in this instance — Harlow's is a public entity as defined under the law.

"Public entity" is defined in N.D.C.C. § 44-04-17.1(13). In addition to public or governmental bodies, boards, bureaus, commissioners or agencies of the state or political subdivisions of the state, a public entity includes "[o]rganizations or agencies supported in whole or in part by public funds, or expending public funds."[13] The law defines an "organization or agency supported in whole or in part by public funds" as:

an organization or agency in any form which has received public funds exceeding the fair market value of any goods or services given in exchange for the public funds, whether through grants, membership dues, fees, or any other payment. An exchange must be conclusively presumed to be for fair market value, and does not constitute support by public funds, when an organization or agency receives a benefit under any authorized economic development program."[14]

Although the District uses public funds to pay Harlow's, it pays fair market value for the services provided.[15] Therefore, the organization is not supported by public funds for purposes of open records law and is not a "public entity."[16]

Of course, even a private entity may be in possession of a record subject to the open records law because the definition of "records" includes "recorded information of any kind . . . which is in the possession of custody of a public entity or its agent . . . ."[17] In Forum Publ'g Co. v. City of Fargo, the North Dakota Supreme Court said "[w]e do not believe the open-record law can be circumvented by the delegation of a public duty to a third party, and these documents are not any less a public record simply because they were in the possession of [an independent contractor]."[18] If a public entity's agent is a private entity, it is ultimately the public entity's responsibility to produce public records in the agent's possession.[19]

When Harlow's received Ms. Jordan's request, it responded on May 18, 2022, by telling her that they could not release the records that contain student information and also "[i]f you are looking for route detail, your request would need to go to the school district as we will not give that information out."[20] Ms. Jordan evidently did not ask the District for the records. Because Harlow's is not a public entity and Harlow's directed Ms. Jordan to the public entity that has responsibility for complying with the open records law for these records, there was no violation of the open records law.

CONCLUSION

It is my opinion that Harlow's provides services to the District at fair market value and is therefore not a public entity as defined under N.D.C.C. § 44-04-17.1(13). The District records in the possession of Harlow's may be subject to the open records law, but it is the ultimate responsibility of the District to provide a response. Despite being informed of this, the requester failed to request the records from the District.[21]

MEO
cc: Karen Jordan

[1] Letter from KrisAnn Norby-Jahner, Att'y, Vogel Law Firm, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (July 29, 2022).

[2] Id. Appendix A.

[3] Mandan Public Schools, https://www.mandan.k12.nd.us/en-US/transportation-9c75db0f (last accessed Sept. 9, 2025).

[4] Letter from KrisAnn Norby-Jahner, Att'y, Vogel Law Firm, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (July 29, 2022). See VALUE, Black's Law Dictionary (12th ed. 2024) "fair market value (18c) The price that a seller is willing to accept and a buyer is willing to pay on the open market and in an arm's-length transaction; the point at which supply and demand intersect." See also, N.D.A.G. 98-F-19 ("Thus, if a competitive bid or proposal process was used to award the contract and establish the reimbursement rates, the rates resulting from that process could be presumed to be 'fair market value.'").

[5] Letter from Karen Jordan, to Drew Wrigley, Att'y Gen., Off. of Att'y Gen. (June 9, 2022).

[6] Id.

[7] Email from Ken Bischof, Dir. of Operations, Harlow's Sch. Bus Serv., to Karen Jordan (May 18, 2022, 2:57 PM). Emphasis added.

[8] Letter from Karen Jordan, to Drew Wrigley, Att'y Gen., Off. of Att'y Gen. (June 9, 2022).

[9] Id.

[10] Id.

[11] N.D.C.C. § 44-04-18(1).

[12] N.D.C.C. § 44-04-17.1(11), (13).

[13] NDCC 44-04-17.1(13)(c).

[14] N.D.C.C. 44-04-17.1(10) emphasis added. See also, N.D.A.G. 98-O-23 ("An organization is not supported by public funds, under the statutory definition in N.D.C.C. § 44-04-17.1(9), if the funds the organization has received were provided in exchange for goods or services having an equivalent fair market value").

[15] See N.D.A.G. 2004-O-14 (finding a fair market value exchange for services did not constitute "support" for the purposes of open records laws). See also, N.D.A.G 98-F-19 ("[t]hus, if a competitive bid or proposal process was used to award the contract and establish the reimbursement rates, the rates resulting from that process could be presumed to be 'fair market value.'").

[16] N.D.A.G. 98-F-14; N.D.A.G. 2004-O-14.

[17] N.D.C.C. 44-04-17.1(16).

[18] 391 N.W.2d 169, 172 (N.D. 1986).

[19] See N.D.A.G. 2015-O-14 (finding a violation of the open records laws when failing to produce a record in the possession of its agent).

[20] Email from Ken Bischof, Dir. of Operations, Harlow's Sch. Bus Serv., to Karen Jordan, (May 18, 2022, 2:57 PM).

[21] Because I have determined that Harlow's is not a public entity and the requester did not request the records from the District, it is unnecessary to address in this opinion whether the requested records are subject to the open records law.