If a public entity never receives my emailed records request because of a server problem, is it still required to respond?

Plain-English summary

A citizen emailed the City of Parshall's auditor address ([email protected]) on February 2, 2024 asking for the City's commercial blanket bond information. After three weeks without a response, the citizen requested an AG opinion. The City explained that the auditor was on vacation from February 2 through February 12 with an out-of-office reply turned on, and when she returned and turned the auto-reply off, she could find no emails from her absence period. The City worked with its email service provider (Golden West Technology) to track the missing emails but came up empty.

The AG concluded that's not a violation. Public entities can't be expected to respond to requests they never actually received. The City provided documentation that it had worked with its email service provider to find the missing messages. The AG cited a 2023 opinion making the same point: "every mode of communication has vulnerabilities," and a public entity that never received a request didn't ignore it.

What this means for you

For a requester whose email goes unanswered: this opinion addresses a request the City established it never received. The AG concluded that such a request creates no obligation to respond. The opinion does not decide what would happen if a delayed message eventually reached the City.

For city staff: the auditor found missing emails after turning off her out-of-office message. The City gave the AG documentation showing it had worked with its email provider to locate them. Keep the facts of a delivery problem available when responding to an AG inquiry; this decision relied on the City's account and documentation.

Common questions

Q: Is a city required to answer a records request it never received?
A: No. The AG said an unreceived request creates no more response obligation than a request never sent or communicated.

Q: Did the City's out-of-office message itself excuse a response?
A: The opinion does not say that. The City established it had not received the request because of an issue with its email service provider.

Q: What evidence did the City provide?
A: It documented work with its email provider to find messages missing from the auditor's absence period. The AG said that record showed the City did not ignore the request.

Q: Did the AG decide when an obligation starts if an email arrives late?
A: No. The opinion concerns a request the City never received.

Background and statutory framework

The default rule under N.D.C.C. § 44-04-18(1) is that all records of a public entity are open and accessible during reasonable office hours. N.D.C.C. § 44-04-18(2) adds the duty to "furnish the requester one copy of the public records requested." Both obligations presuppose that the entity has received the request.

Under N.D.C.C. § 44-04-21.1(1), the AG's opinion has to be based on the facts the entity provides. Here the City provided documentation of its attempt to find missing email, and the AG concluded it had not ignored a request.

The opinion cites N.D.A.G. 2023-O-08 for the observation that every mode of communication has vulnerabilities.

Citations

• N.D.C.C. § 44-04-18(1) (default openness)
• N.D.C.C. § 44-04-18(2) (duty to furnish copies)
• N.D.C.C. § 44-04-21.1 (AG opinion procedure; based on facts provided)
• N.D.A.G. 2023-O-08 (no violation when request not received)

Source

• Landing page: https://attorneygeneral.nd.gov/city-of-parshall/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2025/09/2025-O-14.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-14

DATE ISSUED: September 25, 2025
ISSUED TO: City of Parshall

CITIZEN'S REQUEST FOR OPINION

[email protected] requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the City of Parshall violated N.D.C.C. § 44-04-18(2) by not responding to a request for records.

FACTS PRESENTED

On February 2, 2024, an email was sent to [email protected] asking the City Auditor of the City of Parshall (City) to provide the City's commercial blanket bond information for public employees and public officials.[1] On February 23, 2024, this office received a request for an opinion claiming there had been no response to the request for bond records.[2] In response to an inquiry from this office, the City explained that, "[t]he city has not received any emails regarding this request."[3] The City Auditor was out of the office from February 2, 2024, to February 12, 2024, and during that time she had an "out of office" message activated. When she returned, she noticed she did not have many emails, and, when she turned off the "out of office" feature, she started to receive new emails but was unable to find any emails from the dates she was not at work.[4]

ISSUE

Whether the City violated the open records law by failing to respond to an unreceived request for records.

1 Email from j d toefishing@hotmail.com, to Kelly Woessner, City Auditor, City of Parshall (Feb. 2, 2024, 11:02 AM).
2 Email from j d toefishing@hotmail.com, to Mary Kae Kelsch, Gen. Couns. Div. Dir., Off. of Att’y Gen. (Feb. 23, 2024, 4:26 PM).
3 Letter from Kelly Woessner, City Auditor, City of Parshall, to Annique M. Lockard, Assistant Att’y Gen., Off. of Att’y Gen. (Mar. 7, 2024).
4 Email from Alex Quale, Data Network Tech I, to GWIS Operations, Golden West Techn. (Feb. 15, 2024, 10:51 AM).

OPEN RECORDS AND MEETINGS OPINION 2025-O-14
September 25, 2025
Page 2

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."[5] Additionally, a public entity, "shall furnish the requester one copy of the public records requested."[6] Opinions issued by this office must be based on the facts provided by the entity.[7]

Here, the City informed this office that they never received the request for records because of an issue with their email service provider. The City provided this office documentation establishing that they had worked with their email service provider to find the missing emails. As explained in a 2023 opinion, every mode of communication has vulnerabilities,[8] and, public entities cannot respond to requests they did not receive. This record establishes that the City did not ignore a request for records.

CONCLUSION

An unreceived open records request creates no more of an obligation to respond than does a request that is never sent or communicated. As such, the City of Parshall did not violate the open records law in this instance.

Drew H. Wrigley
Attorney General

MEO
cc: jd toefishing@hotmail.com

5 N.D.C.C. § 44-04-18(1).
6 N.D.C.C. § 44-04-18(2).
7 N.D.C.C. § 44-04-21.1.
8 N.D.A.G. 2023-O-08 (finding that no violation of the open records laws when the entity did not violate the open records law when they failed to respond to a request for records they did not receive).