ND 2025-O-16 2025-12-02

If a North Dakota agency hands me a $3,475 estimate to fulfill an open records request, can I challenge it as excessive?

Short answer: Only if the charges aren't authorized by law. The West Fargo Police Department's $3,475 estimate (78 General Orders + 63 personnel files, one hour redaction each, $25/hour after the first two free hours) was based on legally authorized charges, so the AG concluded the estimate didn't violate N.D.C.C. § 44-04-18. Requesters can narrow the request to reduce the cost, but they can't challenge a lawfully calculated estimate as 'excessive' alone.

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 AG opinions are persuasive authority but not binding precedent.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

In December 2022, Levi Mayo asked the West Fargo Police Department for two things: the WFPD's policy and procedure manual (78 General Orders) and the personnel files of all 63 sworn officers. The WFPD responded with a $3,475 cost estimate, calculated as one hour of review and redaction per General Order plus one hour per personnel file, at $25 per hour, minus two free hours (the statutory first hour for each side of the request). Mayo asked the AG whether the estimate was excessive and violated the open records law.

The AG concluded it didn't. North Dakota's open records statute, N.D.C.C. § 44-04-18(2), expressly authorizes a fee of "twenty-five dollars per hour per request, excluding the initial hour, for excising confidential or closed material" and lets the public entity require advance payment. The records the WFPD identified contain confidential or exempt information across multiple statutes: tactical procedures and security plans (§§ 44-04-18.7(3), 44-04-24, 44-04-25), personal information in personnel files (§ 44-04-18.1(2)), and law enforcement personnel records (§§ 44-04-18.3(1), (3), 44-04-18.31). One hour per document for review and redaction was a reasonable estimate, and the calculation followed the statutory formula.

The AG noted that a requester always retains the right to narrow or clarify a request to reduce costs. Mr. Mayo declined to do so. The WFPD's estimate was thus lawfully constructed and didn't violate § 44-04-18. The AG also added a footnote: an estimate is just an estimate. If the actual time turns out to be less, the WFPD must refund the difference.

What this means for you

If you submit broad records requests to police or other agencies

Be ready to refine the request. Asking for "all personnel files" or "all General Orders" will trigger a redaction estimate measured in dozens of hours. The way to reduce costs is to scope the request, by date range, by individual, by document type, by topic. The AG opinion makes clear that an unwillingness to narrow doesn't make a lawful cost estimate unlawful.

If you administer records for a North Dakota agency

The opinion validates a careful, document-by-document time estimate so long as the underlying charges are authorized. The chargeable items are the per-hour redaction fee under § 44-04-18(2) for excising confidential information. You cannot tack on charges that aren't in the statute. Document your basis for the time estimate (which records contain confidential material, why redaction takes the time you estimate). Provide an itemized estimate, not a lump sum.

If you are an investigative journalist or oversight group

Cost estimates are a real friction point. The opinion confirms an agency's right to charge $25/hour for redaction time, and that's after the first hour free per request. Plan around it: prioritize the documents most relevant to your story, file separate narrower requests rather than one massive one (each request gets its own free hour), and ask for a sample to gauge the agency's actual redaction time.

If you are an attorney advising a public-records requester

The opinion's footnote 24 is useful: the agency must refund any overestimate. So even when the upfront estimate is large, the actual cost may be smaller and the agency owes the difference. Build that into your client's expectations.

Common questions

Why is the first hour free?

N.D.C.C. § 44-04-18(2) gives every requester a free first hour of redaction time per request. Beyond that, the agency may charge up to $25/hour. The statute is built to encourage small-volume, well-defined requests; it gets expensive only at scale.

Can the agency charge for time the records officer spends searching?

The statute's chargeable item is "excising confidential or closed material." The opinion focuses on redaction time, not search time. Pure search time is generally not chargeable.

What if I don't believe the estimate of one hour per document?

Negotiate. Ask the agency to produce a sample of redacted records and report the actual time. If the actual time is significantly less, the refund mechanism kicks in. If it's significantly more, the agency may bill more (within the statutory rate), though the AG opinion is clear that the agency must give a fair estimate.

What kinds of information is the agency required to redact?

For police personnel files, the listed statutory exemptions cover: personal information (§ 44-04-18.1(2)), home addresses and telephone numbers (§ 44-04-18.3(1)), work schedules (§ 44-04-18.3(3)), and background-interview materials (§ 44-04-18.31). For policy/procedure manuals, redactable material includes active criminal intelligence (§ 44-04-18.7(3)), security plans (§ 44-04-24), and certain public health/security plans (§ 44-04-25).

What if the agency just refuses to provide the documents because they "contain" confidential material?

That's a separate violation, categorical refusal isn't allowed. A North Dakota public entity must redact and produce the rest. See N.D.A.G. 2025-O-21 (NDIRF refused to redact and produce; held to be a violation).

Can I avoid the cost by scoping my request to specific officers or specific time periods?

Yes. Narrowing the request reduces the number of documents and the redaction time. The AG opinion expressly notes that "Requesters retain the right to narrow or clarify their requests to reduce costs."

Background and statutory framework

The fee scheme for North Dakota records requests sits in N.D.C.C. § 44-04-18(2): a public entity may charge "a fee not exceeding twenty-five dollars per hour per request, excluding the initial hour, for excising confidential or closed material." The same subsection authorizes advance payment.

The substance of what gets redacted comes from a network of exemption statutes:
- § 44-04-18.7(3), active criminal intelligence
- § 44-04-24, security system plans
- § 44-04-25, public health and security plans
- § 44-04-18.1(2), personal information in personnel records
- § 44-04-18.3(1), telephone numbers and home addresses of law enforcement officers (confidential)
- § 44-04-18.3(3), work schedules (exempt)
- § 44-04-18.31, background interviews for law enforcement officers

Prior AG opinions establish the limits on chargeable fees: N.D.A.G. 2011-O-12 says the entity may only assess "specific charges allowed by law"; N.D.A.G. 2003-O-04 warns that "Methods of providing access or copies that are unnecessarily costly should be avoided because that can effectively deny access to public records." Together these set a clear rule: charges must track the statute, but a statute-compliant charge is not "unnecessarily costly" simply because it is large.

Citations

N.D.C.C. § 44-04-18(1)–(2) (default openness; chargeable redaction fee)
N.D.C.C. § 44-04-18.1(2) (personnel record personal information exemption)
N.D.C.C. § 44-04-18.3(1), (3) (law enforcement personnel records)
N.D.C.C. § 44-04-18.31 (background interviews for law enforcement officers)
N.D.C.C. § 44-04-18.7(3) (active criminal intelligence)
N.D.C.C. §§ 44-04-24, 44-04-25 (security and public health plans)
N.D.A.G. 2011-O-12 (charges must be law-authorized)
N.D.A.G. 2003-O-04 (avoiding unnecessarily costly methods)

Source

Landing page: https://attorneygeneral.nd.gov/west-fargo-police-department/
Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2025/12/2025-O-16.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-16

DATE ISSUED: December 2, 2025
ISSUED TO: West Fargo Police Department

CITIZEN'S REQUEST FOR OPINION

Levi Mayo requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the West Fargo Police Department violated N.D.C.C. § 44-04-18 by providing an excessive cost estimate of compliance with an open records request.

FACTS PRESENTED

On December 28, 2022, Levi Mayo submitted a records request to the West Fargo Police Department (WFPD) seeking the WFPD's policy and procedure manual and the personnel files for all police officers employed by the WFPD.

According to the WFPD, the policy and procedure manual consists of 78 General Orders containing security plans, criminal intelligence, tactical procedures, and training materials. The WFPD estimated that reviewing and redacting each order would take approximately one hour each. After subtracting the first free hour of review, this portion of the estimate totaled $1,925.

At the time of the request, the WFPD employed 63 sworn officers. According to the WFPD, the personnel files contain confidential personal information, including background check information and work schedules. The WFPD estimated that reviewing and redacting each file would take approximately one hour each. After subtracting the first hour of review, this portion of the estimate totaled $1,550.

The total estimated cost of $3,475 was calculated based on the time needed to review and redact the records for exempt or confidential information. The WFPD issued the estimate before beginning work, and Mr. Mayo did not reduce or clarify his request to lower the anticipated charges.

ISSUE

Whether the West Fargo Police Department's estimate of charges they claim is necessary to respond to a records request complies with 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 may charge a fee for responding to an open records request only if the charge is specifically authorized by law. N.D.C.C. § 44-04-18(2), provides that a public entity may charge "a fee not exceeding twenty-five dollars per hour per request, excluding the initial hour, for excising confidential or closed material." The statute also permits a public entity to require payment from the requester prior to locating, redacting, making, or mailing records.

Mr. Mayo's request included two broad categories of records: (1) the WFPD's policy and procedure manual, consisting of 78 General Orders, and (2) the personnel files for all 63 sworn officers. The WFPD claims that the high estimate reflects the large volume of records and the need to conduct a detailed review of each document to identify and redact confidential or exempt information. According to the WFPD, the policy documents include security plans and criminal intelligence information, such as tactical procedures and training materials related to prospective criminal activities. The personnel files contain personal information, background check information, and work schedules that are exempt from disclosure under the open records law.

The WFPD estimated that reviewing and redacting 78 General Orders and 63 personnel files would take approximately one hour per document. After subtracting the first two free hours, the WFPD estimated it would cost $3,475 (139 hours x $25) to respond to the records request.

A public entity may charge up to twenty-five dollars per hour, excluding the first hour, for time spent redacting confidential or close information, and may require advance payment. Based on this authority, the WFPD provided Mr. Mayo with a cost estimate of $3,475 for the anticipated time to review and redact the requested records. An entity may only assess specific charges allowed by law and an estimate provided to a requester must be based only on legally chargeable fees. Methods of providing access or copies that are unnecessarily costly should be avoided because that can effectively deny access to public records. Any opinion issued pursuant to N.D.C.C. § 44-04-21.1 must base the opinion on the facts provided by the public entity. Because the estimate provided by the WFPD was based on charges authorized by law, no violation of the open records law occurred.

Requesters retain the right to narrow or clarify their requests to reduce costs. Nevertheless, Mr. Mayo declined to narrow his request.

CONCLUSION

The West Fargo Police Department properly estimated the allowable charges in this matter and, therefore, did not violate N.D.C.C. § 44-04-18.

Attorney General

AMR/mjh
cc: Levi Mayo

[Note: The estimate is just that, an estimate, so if the actual costs of providing the records is not as estimated, then the West Fargo Police Department should refund the difference to the requester.]