Can a North Dakota city charge for record copies before sending them, and can it deny a records request just because the records contain some confidential information?

Plain-English summary

Jeff McDougald asked the City of Parshall for various records (utility bills, agendas, water-account records, denial-of-service documentation) over a series of requests starting in June 2022. The city handled some requests well and some badly. The AG split the questions into three issues:

First, the fee. Mr. McDougald complained that the city's $20.01 invoice for 21 pages of copies plus certified-mail postage was unreasonable, and that the city's demand for payment before delivery was improper. The AG said the charge was fine: 25 cents per page is the statutory ceiling for paper copies and the city did not exceed it; postage at actual cost is permitted; and the open records statute expressly allows requiring payment in advance. The use of certified mail was reasonable here because the city and Mr. McDougald had a long history of disputes, but the opinion warns that mail method should not be used to punish or deter requesters.

Second, the records the city refused. In May 2023 Mr. McDougald asked for "every water bill for every water account in the City of Parshall" for calendar year 2022. The city, on advice of its attorney, denied the request entirely on the ground that the records would contain confidential information. The AG said that was wrong. North Dakota law explicitly requires public entities to release the parts of a record that are open and redact the parts that are confidential. A blanket denial of the whole record because part of it is confidential is a violation. The remedy: produce the records with confidential information redacted.

Third, the documentation Mr. McDougald wanted around the city's denial of his water service. The city did not have a record literally called "denial," but it sent him an invoice for $1,876 for water received without permission. The AG said that invoice was responsive: it told Mr. McDougald why the city was denying water service, even though the format was different from what he had asked for. No violation on this issue.

The remedy: provide the redacted water-account records, and give Mr. McDougald an additional hour of free redaction time so the redaction effort itself does not become a fee burden.

What this means for you

If you are a city auditor or clerk in North Dakota: The fee math is settled. 25 cents per page max, plus actual postage. Get payment up front if you want to. But never deny a record because parts of it are confidential: redact and release. The "expensive to redact" complaint is real; the law allows you to charge for redaction time, but the AG's remedy here adds a free hour, so build that allowance into your initial response if a request implicates confidential data.

If you are a records requester (citizen, journalist, opponent in a dispute): Two practical takeaways. First, do not waive your right to electronic copies if you actually want them. The fee analysis here turned partly on the fact that Mr. McDougald did not specify electronic format up front, so the city's paper-only response was reasonable. Specify electronic format when you submit. Second, when an entity says "the records contain confidential information," that is not a denial. Push back: ask for redacted versions, cite N.D.C.C. § 44-04-18.10(2), and if they still refuse, request an AG opinion under N.D.C.C. § 44-04-21.1.

If you are a city attorney advising on a denial: The "redact, don't deny" rule is the most-violated provision of the open records law. If you are preparing a denial, default to "we will release a redacted version on this timeline" instead. A blanket denial sets up the city for a § 44-04-21.2 attorney-fee award if the requester prevails.

If you are a city council member overseeing records policy: Set up a written records policy that addresses redaction, the 25-cent ceiling, postage at actual cost, and the option to require advance payment. Include a checklist that ensures the staff response does not collapse "this contains confidential information" into "denied." A § 44-04-21.1 opinion against you triggers fee exposure and personal-liability exposure under § 44-04-21.2.

Common questions

What's the maximum copy fee?

25 cents per impression of a paper copy. The city in this case charged exactly that. Postage may be charged at actual cost. The opinion confirms that fees beyond these statutory ceilings violate § 44-04-18(8).

Can the city require payment before sending the records?

Yes. The statute and prior AG opinions confirm an entity "may require payment before locating, redacting, making, or mailing the copy." That is what Parshall did and the AG approved.

What if the requester wanted electronic copies?

The opinion confirms that if a requester does not specify electronic format at the time of the request, paper is a reasonable response. To get electronic copies, ask for them explicitly.

Why was certified mail OK?

The opinion called it "reasonable to ensure Mr. McDougald received them" given the parties' extensive dispute history. But it warned: "this method should not be used to punish or deter requesters." Translation: certified mail in a contentious case is fine; certified mail to make every record request expensive is not.

Can a city deny a records request because the records contain confidential information?

No. This is the central holding. Under N.D.C.C. § 44-04-18.10(1), "[a] public entity may not deny a request for an open record because the record also contains exempt or confidential information." The entity must redact and release.

What does a proper denial look like?

If a record is genuinely entirely closed (rather than partially), the denial must "describe the legal authority for the denial." N.D.C.C. § 44-04-18(7). It must be in writing if requested. The denial must identify the entity's specific authority for refusing the record.

What happens if the city doesn't fix the violation?

If the city does not take the AG's prescribed corrective measures within seven days, mandatory costs, disbursements, and reasonable attorney fees follow if the requester wins a civil action under N.D.C.C. § 44-04-21.2. Personal liability for the responsible city employees is also possible.

Background and statutory framework

North Dakota's open records statute, N.D.C.C. § 44-04-18, declares all records of a public entity to be open except as specifically provided by law. Subsection (2) sets the fee structure (25-cent ceiling for paper copies, actual cost for postage) and authorizes the entity to require advance payment. Subsection (7) requires that any denial describe the legal authority for the denial. Subsection (8) declares that fees in excess of the statutory ceiling are themselves a violation.

The redact-don't-deny principle is split across two subsections: § 44-04-18.10(1) prohibits denying a record because it contains exempt or confidential parts, and § 44-04-18.10(2) requires the entity to redact those parts and release the rest. The AG cites a long line of opinions affirming this rule (N.D.A.G. 2005-O-06; N.D.A.G. 2004-O-23; N.D.A.G. 98-O-22).

The opinion-and-enforcement track sits in N.D.C.C. § 44-04-21.1 (request for an AG opinion) and § 44-04-21.2 (civil action with mandatory fee-shifting if the requester prevails).

The earlier opinion this one builds on is N.D.A.G. 2016-O-20, which framed the paper-versus-electronic question and confirmed that an entity is reasonable in defaulting to paper if the requester does not specify electronic. N.D.A.G. 2004-O-20 supplied the "fees should not be raised to punish or deter requesters" principle.

Citations

The fee structure: N.D.C.C. § 44-04-18(2) (25-cent ceiling, actual postage, advance payment); § 44-04-18(8) (fees over statutory ceiling violate the law). The denial rules: N.D.C.C. § 44-04-18(7) (denial must describe legal authority). The redact-don't-deny rule: N.D.C.C. § 44-04-18.10(1)-(2). The AG opinion procedure: N.D.C.C. § 44-04-21.1. The fee-shifting penalty: N.D.C.C. § 44-04-21.2. Prior AG opinions: N.D.A.G. 2016-O-20; 2005-O-06; 2004-O-23; 2004-O-20; 98-O-22; 2022-O-01; 97-O-01; 2015-O-17.

Source

• Landing page: https://attorneygeneral.nd.gov/city-of-parshall-2/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2025/12/2025-O-17.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-17

DATE ISSUED: December 5, 2025

ISSUED TO: City of Parshall

CITIZEN'S REQUEST FOR OPINION

Jeff McDougald 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 by charging a fee and requiring payment prior to providing requested records, by unreasonably delaying without providing a denial or reason for not providing records, and by improperly denying requested records.

FACTS PRESENTED

On June 24, 2022, the City of Parshall (City), received a request for records from "j d", asking for: (1) Copies of the services bill (water, sewer, garbage) from 11/1/2020 through 6/24/2022, for 306 1st St. NW/McDougald; (2) Record of any and all cost increases in the same time period; (3) Record of actual cost that Circle Sanitation charges City of Parshall per month for each residential garbage tote or bin in use; (4) Minimum cost of water service and how many gallons that provides; (5) Cost of additional water used over the minimum (if applicable). Mr. McDougald also requested information on how he could access reading the meter for water usage at his address.

The City informed Mr. McDougald on July 5, 2022, that the information was ready to be mailed to him and attached an invoice for the charges incurred for the copies and postage. The City explained that the records would be mailed once he paid the fees. The total cost for the copies was $5.25 for 21 pages of copies at 25 cents per page and postage in the amount of $14.76 for a total invoice of $20.01.

Mr. McDougald contested the cost of the copies and postage and responded that he did not want paper copies, but instead wanted the records via email. On September 19, 2023, Mr. McDougald picked up the responsive records in person after paying $5.25 for the cost of copying. There was no charge for postage.

On May 2, 2023, the City received another email from Mr. McDougald requesting "every water bill for every water account in the [C]ity of Parshall for the dates of January 1, 2022, thru December 31, 2022." Upon advice of the City's attorney, the City did not release the requested records based on concerns that providing the records would release confidential information. It is unclear from the City's response whether the denial, and the reasoning behind it, were communicated to Mr. McDougald.

On August 9, 2023, Mr. McDougald hand delivered another request: (1) Rules and regulations for getting on the agenda to speak at city council meetings, including dates, time, and place of meetings for 2023; (2) Regular business hours of Parshall City Hall; (3) Record of denial of water service to 11 2nd St. S.E. Parshall, including all forms of records: phone, verbal, written; (4) Contact information for all city council members and the mayor of Parshall, including phone numbers and email addresses. Mr. McDougald informed this office that he submitted an additional handwritten request on August 16, 2023, asking for an update.

In their response to this office, the City replied that they did not receive a request on August 16, 2023, but explained that the records were already given to him and he has an outstanding bill for those records. The City further explained that Mr. McDougald was provided with paper copies of the records in response to his August 9, 2023, request numbers 1, 2, and 4 free of charge on September 21, 2023. The City did not have a "denial" to provide to Mr. McDougald in response to his request number 3, but they did send him an invoice for $1,876.00 for water he received through the City water supply but without permission.

ISSUES

1. Whether the City violated N.D.C.C. § 44-04-18 by charging unreasonable fees and requiring payment prior to providing records in response to Mr. McDougald's June 24, 2022, request.

2. Whether the City violated N.D.C.C. § 44-04-18 by not providing a denial or reason for not providing records that may contain confidential or exempt information in response to Mr. McDougald's May 2, 2023, request.

3. Whether the City violated N.D.C.C. § 44-04-18 by not providing the legal authority for the denial of records in response to Mr. McDougald's August 9, 2023, request.

ANALYSIS

Issue One

"A public entity may charge up to twenty-five cents per impression of a paper copy." "The entity may charge for the actual cost of postage to mail a copy of a record." "This section is violated . . . when a fee is charged in excess of the amount authorized in subsections 2 and 3."

When providing records under N.D.C.C. § 44-04-18, the public entity is allowed to charge a 'reasonable fee' and obtain payment of the fee in advance. . . . The definition of 'reasonable fee' limits a public entity to charging no more than the actual cost of making the copies, including labor, materials, and equipment.

In response to the June 24, 2022, request, the City provided a copy of the invoice that listed the itemized cost: twenty-one pages of records at twenty-five cents per copy, for a total of $5.25, and postage of $14.76 for sending the records by certified mail, restricted delivery, and return receipt. There was no charge for the time spent locating and compiling the records although open records law permits these charges.

In a past opinion of this office, when a requester did not specify whether he wanted electronic or paper copies of records, this office concluded that, "[w]ithout a specific request that electronic records be provided in electronic format at the time of the request, it was not unreasonable to provide paper [copies]." Here, Mr. McDougald requested copies of records without specifying that he wanted electronic copies, so the fulfillment of the request with paper copies is reasonable.

The law also allows a public entity to require payment before locating, redacting, making, or mailing the copy. This office has previously stated that "[a]n entity may require payment before making or mailing the copy." Here, the City supplied Mr. McDougald with an invoice for reasonable charges to fulfill his request. In accord with previous decisions of this office, it is my opinion that the City did not violate the open records law when they provided and billed for paper copies and required the payment before delivering the records to Mr. McDougald.

Issue Two

"[I]f confidential or closed information is contained in an open record, a public entity shall permit inspection and receipt of copies of the information contained in the record that is not confidential or closed, but shall delete, excise, or otherwise withhold the confidential or closed information." "In determining whether some of the information requested is exempt or confidential, [the City] should keep in mind that a public entity may not deny a request for an open record because the record also contains exempt or confidential information." "Rather, the entity is required to redact or excise the exempt or confidential information and disclose the rest of the record." Although the "water accounts" requested on May 2, 2023, may contain confidential information, this does not shield the remainder of the records from being open to the public. A "public entity may not deny a request . . . on the ground that the record also contains confidential information." It is my opinion that the City violated the open records law by refusing to release records because they may contain confidential information, when the records can be redacted and provided in accordance with North Dakota's open records provisions.

Issue Three

"A denial of a request for records made under [N.D.C.C. § 44-04-18] must describe the legal authority for the denial, or a statement that the record does not exist, and must be in writing if requested."

When a public entity denies a request for records, it must describe the legal authority for the denial. While a denial need not cite the specific statute that provides the basis for the exemption, the legal reason for the denial must be described. A denial of an open record request must indicate the entity's specific authority for denying the requested record.

Here, the City provided the four records Mr. McDougald requested on August 9, 2023. Although he did not receive a record called a "denial" of his request for a record of the City's denial of water service to his property, he did receive an invoice for back water fees owed to the City. The invoice fulfilled his request for a record that explained why the City was denying his water service.

CONCLUSIONS

1. The City did not violate N.D.C.C. § 44-04-18 by charging a reasonable fee and requiring payment prior to providing records in response to Mr. McDougald's June 24, 2022, request.

2. The City violated N.D.C.C. § 44-04-18 by refusing to provide records because they may contain confidential information in response to Mr. McDougald's May 2, 2023, request, when those records were able to be redacted.

3. The City did not violate N.D.C.C. § 44-04-18 because it provided the records requested by Mr. McDougald in response to his August 9, 2023, request.

STEPS NEEDED TO REMEDY VIOLATION

The City must provide Mr. McDougald with copies of the "water accounts" after they have redacted any confidential or exempt information contained in the "water accounts." The City must give Mr. McDougald one additional hour free of charge for redacting any confidential information from the records.

While I have every reason to expect that the City will remedy this situation in compliance with this opinion, failure to take the corrective measures described in this opinion within seven days of the date here is issued 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. Failure to take these corrective measures may also result in personal liability for the person or persons responsible for the noncompliance.

Drew H. Wrigley
Attorney General

cc:
"j d" (via email only)
D Humphrey (via email only)