When someone asks a North Dakota sheriff's office for records about a victim or witness in a criminal case, must the sheriff release them?

Plain-English summary

Leon Brown IV, who had a criminal case involving two individuals identified in the opinion as H.M.W. and A.L., asked the Ward County Sheriff's Department for "all records, color photos, reports" about each of them going back several years. The Sheriff's Department initially asked for payment for the H.M.W. records, then reversed course and denied both requests. The cited reason: H.M.W. and A.L. were a victim and a witness in Mr. Brown's criminal case, and N.D.C.C. § 12.1-34-02(11) exempts records "containing the address, telephone number, place of employment, or other information that could be used to locate the victim or witness to a crime."

After Mr. Brown protested, the Sheriff's Department reversed itself again on H.M.W.'s records (acknowledging the original denial was inadvertent) but maintained that A.L.'s records were exempt and stayed denied.

The AG's opinion analyzed the A.L. denial. The starting point: the victim/witness exemption is real and broad. The statute protects locator information for any victim or witness whose records are held by a "criminal justice agency" (which includes the Sheriff's Department), a correctional facility, or the Department of Corrections. AG opinion practice has read that exemption broadly to support the underlying public-safety interest.

But the exemption is for the locator information, not for "all records about the person." Under N.D.C.C. § 44-04-18.10(1)-(2), when an open record contains some confidential information, the entity must redact and release the rest. It cannot deny the whole record. The Sheriff's Department's blanket denial of "all records about A.L." swept in records that did not contain locator information at all, which is a violation. The remedy: redact the locator info and provide the rest at no charge.

The opinion also gives the Sheriff's Department a measure of credit. The original H.M.W. denial was inadvertent and was reversed. The substance of the A.L. denial was based on a real, applicable exemption. The violation is procedural (denial instead of redaction), not substantive abuse.

What this means for you

If you are a sheriff or law enforcement records custodian: The victim/witness exemption is one of the broadest open-records exemptions in North Dakota law, but it is not a license to refuse a request entirely. Build a workflow that defaults to redaction. When a request implicates a victim or witness, your response should be: "we will produce these records with locator information redacted on this timeline": not "denied."

If you are a criminal defendant or someone investigating a case: Public records requests at the sheriff's office are one tool, but they are not your discovery vehicle. Locator information for victims and witnesses is properly closed; you cannot use § 44-04-18 to find someone's address. What you can get: redacted reports, photos with faces or other locators redacted, narrative records that do not turn on identification.

If you advocate for victims or witnesses: This opinion confirms North Dakota's commitment to protecting locator information. The "broad reading" the AG gives N.D.C.C. § 12.1-34-02(11) means agencies can be cautious in interpreting "other information that could be used to locate." Names, addresses, employer details, vehicle information, social media handles all probably fall within the exemption.

If you are a county attorney advising a sheriff's office: Train deputies that "exempt material in the file" does not equal "denial." The AG's opinion practice is consistent on this point and the next contested denial is going to mean fee-shifting under § 44-04-21.2 and possible personal liability. Push the office to redact-first, deny-as-last-resort.

Common questions

What's the victim/witness exemption?

N.D.C.C. § 12.1-34-02(11) exempts records of a criminal justice agency, correctional facility, or the Department of Corrections that contain "the address, telephone number, place of employment, or other information that could be used to locate the victim or witness to a crime." The exemption protects the safety of victims and witnesses by closing locator information from public records.

Why is this exemption read so broadly?

The AG's reasoning: protecting victims and witnesses is a long-standing North Dakota public policy. The "balance" between general open records and law enforcement records "is necessary and vital for the protection of the health and welfare of its citizens." That tilts the close call toward closing rather than disclosing.

Does the exemption protect names?

The statute lists "address, telephone number, place of employment, or other information that could be used to locate." A name alone is not directly listed but could fall within "other information" depending on context. Practical answer: if releasing the name would let someone find the person (because the name is unusual, or because it pairs with other public information), the agency has discretion to redact it.

What if the record is purely about events without locator information?

Then it is not exempt and must be released. The exemption is on the locator information, not on the record category as a whole. A narrative report of an incident, with locator information redacted, should be available.

Does this rule apply to records held by prosecutors, courts, or DOC?

Prosecutors are "criminal justice agencies" under § 44-04-18.7(4), so yes. Correctional facilities are expressly listed. Courts have a separate records framework (judicial branch records are generally outside the executive open-records statute). The Department of Corrections is expressly listed.

Is "may be open in the discretion of the public entity" really discretion?

The opinion frames the agency as having discretion to release exempt information if it chooses, but the public-safety interest gives the agency strong reason to be cautious. The "discretion" is a permissive grant; an agency that chooses to release locator info despite the exemption can do so but should think carefully about why.

What does the corrective remedy look like here?

The Sheriff's Department must take the records about A.L., redact the locator information at its discretion, and produce the rest to Mr. Brown free of charge. Failure to do so within seven days triggers § 44-04-21.2 fee-shifting and possible personal liability.

Background and statutory framework

The two statutes in tension: N.D.C.C. § 44-04-18 (general open records) and N.D.C.C. § 12.1-34-02(11) (victim/witness locator exemption).

The general rule, § 44-04-18(1), is that all records of a public entity are public records except as specifically provided by law. Subsection (7) requires any denial to describe the legal authority for the denial. Subsection (2) authorizes the entity to redact confidential or closed material before releasing a record.

The exemption: § 12.1-34-02(11) protects "address, telephone number, place of employment, or other information that could be used to locate the victim or witness to a crime" when the records are held by a criminal justice agency (defined in § 44-04-18.7(4)), a correctional facility (defined in § 12-44.1-01(4)), or the Department of Corrections.

The redact-don't-deny rule: § 44-04-18.10(1) prohibits denying a record because it contains confidential information; § 44-04-18.10(2) requires redaction and release. This is the procedural rule the Sheriff's Department violated.

The discretion provision: § 44-04-17.1(5) provides that exempt records "may be open in the discretion of the public entity." That gives agencies the option to release if appropriate, but does not require them to.

The enforcement track: § 44-04-21.1 provides for AG opinions on alleged violations; § 44-04-21.2 provides for civil actions with mandatory fee-shifting if the requester prevails.

The expansive-exemptions principle for law enforcement records comes from N.D.A.G. 2005-O-13 (citing N.D.A.G. 79-201; N.D.A.G. Letter to McLean (Jan. 27, 1986); Downs v. Austin, 522 So. 2d 931, 933 (TX 1989)). That principle does not, however, override the redact-don't-deny rule.

Citations

The general open records statute: N.D.C.C. § 44-04-18(1) (records open by default), (2) (redaction authority), (7) (denial must describe legal authority). The criminal-justice-agency definition: N.D.C.C. § 44-04-18.7(4). The correctional-facility definition: N.D.C.C. § 12-44.1-01(4). The victim/witness exemption: N.D.C.C. § 12.1-34-02(11). The redact-don't-deny rule: N.D.C.C. § 44-04-18.10(1)-(2). The discretion provision: N.D.C.C. § 44-04-17.1(5). The enforcement provisions: N.D.C.C. §§ 44-04-21.1, 44-04-21.2. Prior AG opinion on expansive law-enforcement exemptions: N.D.A.G. 2005-O-13.

Source

• Landing page: https://attorneygeneral.nd.gov/ward-county-sheriffs-department/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2025/12/2025-O-20.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-20

DATE ISSUED: December 5, 2025

ISSUED TO: Ward County Sheriff's Department

CITIZEN'S REQUEST FOR OPINION

Leon Brown IV requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the Ward County Sheriff's Department violated N.D.C.C. § 44-04-18 by denying a request to release records, claiming an exemption under N.D.C.C. § 12.1-34-02 regarding a victim or witness to a crime.

FACTS PRESENTED

On September 17, 2022, Leon Brown IV (Mr. Brown) requested that the Ward County Sheriff's Department (Department) provide him "all records, color photos, reports, etc., for the date range between 2018 to present" regarding an individual, H.M.W. On September 20, 2022, Mr. Brown requested "[a]ll records, color photos, reports, etc. for the date range between May 2014 to present" regarding a separate individual, A.L. On September 23, 2022, the Department initially responded that records pertaining to H.M.W. would be provided upon receipt of Mr. Brown's payment for a copy of the report. On September 30, 2022, however, the Department issued two additional responses to Mr. Brown, denying his requests for records of both individuals, citing the exemption under N.D.C.C. § 12.1-34-02(11). The Department's responses stated that the requests for records were denied because H.M.W. and A.L. are listed as victims or witnesses of a criminal matter involving Mr. Brown. On October 7, 2022, Mr. Brown sent the Department a letter asserting that the denial of record requests for H.M.W. and A.L. was improper. On October 26, 2022, the Department responded to Mr. Brown's letter and acknowledged that the request for records related to H.M.W. "was inadvertently denied" and that his request for H.M.W.'s records "is approved." The Department requested Mr. Brown send payment of $12.00 for a copy of the report. While the Department reversed its initial refusal to provide Mr. Brown the information he requested regarding H.M.W., it maintains that the records of A.L. are exempt under N.D.C.C. § 12.1-34-02(11).

ISSUE

Whether the Ward County Sheriff's Department violated N.D.C.C. § 44-04-18 by denying a request to release the records pertaining to a witness pursuant to the open records exemption provided for in N.D.C.C. § 12.1-34-02(11).

ANALYSIS

The inadvertent denial of records for H.M.W. has been rectified, so this analysis focuses solely on the Department's denial of records pertaining to A.L. In its September 30, 2022, letter to Mr. Brown, the Department indicated that A.L. "is listed as a victim and/or witness in a criminal case involving [Mr. Brown]," and that his request for records pertaining to A.L. was therefore denied under "North Dakota Century Code (N.D.C.C.) § 12.1-34-02(11)."

All records of a public entity are public records except as otherwise specifically provided by law. A denial of a records request "must describe the legal authority for the denial." Here, the Department's denial of Mr. Brown's request specifically cites a subsection of N.D.C.C. § 12.1-34-02 titled "Fair treatment standards for victims and witnesses," which provides:

Records of a criminal justice agency as defined by section 44-04-18.7, a correctional facility as defined in section 12-44.1-01, and the department of corrections and rehabilitation containing the address, telephone number, place of employment, or other information that could be used to locate the victim or witness to a crime, are exempt.

The Ward County Sheriff's Department meets the definition of "criminal justice agency" under N.D.C.C. § 44-04-18.7. Records of the agency that could be used to locate the victim or witness to a crime are exempt and "may be open in the discretion of the public entity." The protections afforded under N.D.C.C. § 12.1-34-02(11) apply to records containing an address, telephone number, or place of employment, and more broadly to "other information that could be used to locate the victim or witness to a crime."

This office also recognizes that public safety considerations dictate that law enforcement records be afforded "expansive exemptions" from open records law:

Some of the most expansive exemptions from the open records law involve law enforcement records. The policy behind the exemptions for certain law enforcement and police records is an attempt to balance the public's general right to know public information with a public policy that the state's efficient operation of law enforcement agencies is necessary and vital for the protection of the health and welfare of its citizens.

For decades, the clear public policy of North Dakota has been, and continues to be, to ensure the protection of victims and witnesses. N.D.C.C. § 12.1-34-02(11) is read broadly in that context and subject to the discretion of the public entity holding such victim and witness records.

The law provides that "if confidential or closed information is contained in an open record, a public entity shall permit inspection and receipt of copies of the information that is not confidential or closed, but shall delete, excise, or otherwise withhold the confidential or closed information." While N.D.C.C. § 12.1-34-02(11) makes clear that "[r]ecords . . . containing the address, telephone number, place of employment, or other information that could be used to locate the victim or witness to a crime, are exempt[,]" such records may be redacted in the discretion of the Department, thereby helping to ensure the safety of the victim or witness. Inherent in North Dakota's public records laws is the capacity of an agency to redact information from records that is confidential or closed. Once those permitted redactions are made, the remaining portions of the record must be provided, absent other exemptions in North Dakota law.

CONCLUSION

The Department violated N.D.C.C. § 44-04-18 by denying Mr. Brown's request without redacting any confidential or exempt records. By exercising proper discretion as to what information is redacted, the Department may meet its obligations under N.D.C.C. § 44-04-18, without defeating the purpose and focus of N.D.C.C. § 12.1-34-02(11) for the protection of victims and witnesses.

STEPS NEEDED TO REMEDY VIOLATION

The records requested by Mr. Brown in this matter must be redacted at the discretion of the Department pursuant to N.D.C.C. § 44-04-18 to exclude information exempted under N.D.C.C. § 12.1-34-02(11), then provided to Mr. Brown at no expense.

While I have every reason to expect the Department will remedy this situation, failure to take the corrective measures described in this opinion within seven days of the date this opinion 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:
Leon Brown IV