ND 2025-O-14 2025-09-25

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

Short answer: No. The AG concluded that an unreceived open records request creates no more obligation to respond than an unsent one. The City of Parshall's email service provider had a delivery problem during the City Auditor's out-of-office period; the City established it never saw the request, so there was no violation.

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 AG opinions are persuasive authority but not binding precedent.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

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 documented its good-faith effort with the email vendor, and that's what the open records statute reasonably contemplates. 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

If you submit records requests by email

Get a delivery confirmation, or follow up by phone or in writing if you don't get a response within a reasonable time. The opinion makes clear that responsibility shifts back to the requester when there's no proof the entity received the request. A returned-mail bounce notice from your email provider is good evidence the agency didn't get it; silence is not.

If you handle records for a small public entity

Document your inbox issues. The City of Parshall avoided a violation by showing it had worked with the email service provider and that the missing-email problem was real. If your entity uses a third-party email host, keep contact with the host and save evidence of any delivery problems.

If you're a public information officer

Out-of-office replies should mention an alternative contact person who can handle urgent or time-sensitive requests during your absence. The AG didn't fault Parshall for its out-of-office practice, but a backup contact would help in cases where the absent person's mailbox is genuinely broken.

Common questions

What if the agency saw the request later, after the email problem was fixed?

Then the response clock would start from when the agency actually received it. The opinion focuses on the period when the City genuinely didn't have the email. If a delayed delivery eventually got through, the agency's obligation kicks in then.

Can a public entity refuse to respond just by claiming "we didn't see your email"?

The AG's framework requires actual evidence. The City of Parshall produced communications with its email service provider documenting the delivery failure. A bare assertion without supporting evidence wouldn't carry the same weight.

What's the safest way to make a records request?

Methods that produce a delivery receipt: certified mail, hand delivery with a receipt, an online portal that confirms submission, or email plus a follow-up call. The North Dakota statute does not require requests to be in any particular form, so phone calls or walk-ins are also valid.

Is this opinion likely to come up often?

Yes, small entities running on limited tech infrastructure see exactly these scenarios. The 2023 opinion the AG cites here (2023-O-08) had a similar fact pattern. Both are useful for setting expectations.

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. Section 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 entity provided documentation of an email-delivery failure, and the AG accepted that as the dispositive fact.

The 2023 opinion the AG cites, N.D.A.G. 2023-O-08, made the same point: a public entity that did not receive a request cannot have violated the open records law by failing to respond.

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. On February 23, 2024, this office received a request for an opinion claiming there had been no response to the request for bond records. In response to an inquiry from this office, the City explained that, "[t]he city has not received any emails regarding this request." 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.

ISSUE

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

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

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, 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.

MEO
cc: jd toefishing@hotmail.com