If a public-entity insurance pool denies my claim, can it also refuse to give me its claim file by calling it 'active litigation records'?

Plain-English summary

A water main broke in front of the Kommers' commercial property in Fargo, allegedly causing significant flooding and damage. A City of Fargo crew chief on site told them the City's insurance would cover the damage. The Kommers filed a third-party liability claim against the City through the North Dakota Insurance Reserve Fund (NDIRF), the City's self-insurance pool. NDIRF denied the claim, finding no negligence on the City's part.

The Kommers asked for the claim file under the open records law. NDIRF refused twice. First, on February 15, 2023, citing N.D.C.C. § 26.1-23.1-06, a statute that makes "that portion of the funds or liability reserves" confidential. Second, on February 23, 2023, citing the "active litigation records" exemption in N.D.C.C. § 44-04-19.1(12), based on the Kommers' off-handed mention that they were "moving forward with litigation."

The AG concluded both denials violated N.D.C.C. § 44-04-18. The reserves-confidentiality statute is narrow: only "the amount of reserves set aside for a claim" is confidential. Other claim-file documents, even if they helped determine reserves, are open. NDIRF couldn't deny the entire file just because some pages might contain reserve numbers; it had to redact the protected portion and produce the rest under § 44-04-18.10. The active-litigation exemption also failed because the file was compiled in the ordinary course of business to evaluate liability, not "for the purpose of litigation," and a vague mention of future litigation doesn't transform a routine claims file into a litigation file.

NDIRF was ordered to provide the requested records to the Kommers at no charge, with reserves-amount information redacted. The standard seven-day clock and personal-liability warning under N.D.C.C. § 44-04-21.2 applies.

What this means for you

If you have filed a claim against a North Dakota city, county, or other political subdivision

You can request the claim file. The AG opinion says the file is open with a narrow redaction for reserves amounts. NDIRF (the most common government self-insurance pool in North Dakota) is a public entity under § 44-04-17.1(13)(b) because it is an agency of its member political subdivisions. Hagen v. NDIRF, 2022 ND 53, 971 N.W.2d 833, confirms that. Send the request in writing, citing this opinion if there's pushback.

If you administer a government self-insurance pool or work as a claims adjuster

Two specific takeaways. First, the reserves-confidentiality statute is narrow, apply it only to actual reserves amounts, not the rest of the claim file. Second, the active-litigation exemption requires records "obtained, compiled, or prepared by a public entity or the attorney representing a public entity for the purpose of litigation." A routine claims file isn't that. If you create separate work product specifically for anticipated litigation, say, a memo to outside counsel, that would qualify. The whole claims file generally won't.

If you are a personal injury attorney or property damage attorney

This opinion is a useful tool for getting the claim file before filing a lawsuit. The narrow reserves carve-out is in N.D.C.C. § 26.1-23.1-06; the broader claims file is generally open under § 44-04-18.

If you are a city or county attorney

Brief your insurance pool and adjusters on the rule: a vague mention of "we're going to sue" by a claimant does not invoke the active-litigation exemption. The exemption attaches to records "compiled or prepared . . . for the purpose of litigation," not to a routine claims file with a litigation-tinged email in the inbox.

Common questions

What's actually confidential under N.D.C.C. § 26.1-23.1-06?

Only the dollar amount of reserves set aside for a particular claim. The AG explained in N.D.A.G. 99-O-02 that other documents in the claim file, even if used to help determine reserves, are not exempt. So the policy, the investigation notes, the correspondence, the photos, those are open. Just redact the actual reserve dollar figure.

Why doesn't "active litigation records" cover the whole claim file?

Because the file was created in the ordinary course of claims handling, investigating, evaluating liability, communicating with the claimant. The exemption in N.D.C.C. § 44-04-19.1(12) applies to records "obtained, compiled, or prepared . . . for the purpose of litigation." Records made before any litigation is contemplated don't qualify, even if litigation is later mentioned.

What if litigation actually does happen later?

Records the entity creates after litigation begins or is reasonably contemplated, and that are made specifically for litigation purposes (work product, attorney memos, expert reports), can fit the exemption. The pre-existing claim file does not.

Can NDIRF refuse the whole file because some pages are confidential?

No. N.D.C.C. § 44-04-18.10(1) says: "A public entity may not deny a request for an open record on the ground the record also contains confidential or closed information." The entity must redact the confidential portion and produce the rest.

Why was NDIRF's "denial of claim" answer not enough?

Because the records request and the claim are separate processes. NDIRF can deny the underlying claim and still owe the claimant the records. Producing the records doesn't reopen the claim, it just satisfies the open records law.

What's the remedy now?

NDIRF must provide the records to the Kommers at no charge, redacting only confidential reserves information under § 26.1-23.1-06. If NDIRF doesn't do this within seven days, the Kommers can sue under § 44-04-21.2 for mandatory costs and attorney fees, with possible personal liability for responsible NDIRF officials.

Background and statutory framework

NDIRF is a government self-insurance pool that provides liability coverage to North Dakota political subdivisions (cities, counties, school districts, etc.). It is a "public entity" under N.D.C.C. § 44-04-17.1(13)(b) because it is an agency of those subdivisions; the North Dakota Supreme Court confirmed this in Hagen v. NDIRF, 2022 ND 53, 971 N.W.2d 833. NDIRF is therefore subject to the open records law.

The open records exemptions invoked here are two. First, N.D.C.C. § 26.1-23.1-06 makes confidential "[i]nformation regarding that portion of the funds or liability reserves of a government self-insured pool established for purposes of satisfying a specific claim." Second, N.D.C.C. § 44-04-19.1(12) creates an "active litigation records" exemption for records "obtained, compiled, or prepared by a public entity or the attorney representing a public entity for the purpose of litigation."

The override rule is in N.D.C.C. § 44-04-18.10. A public entity may not refuse the whole record just because part of it is confidential, it must redact and produce. Combined with the canon that exemptions are "narrowly construed" (N.D.A.G. 94-L-194), the effect is that most of a NDIRF claim file is open, with only specific reserve amounts redactable.

Citations

• N.D.C.C. § 44-04-17.1(13)(b) (NDIRF as a public entity)
• N.D.C.C. § 44-04-18 (open records default; required denial procedures)
• N.D.C.C. § 44-04-18.10(1)–(2) (cannot deny whole record for partial confidentiality; must redact)
• N.D.C.C. § 44-04-19.1(12) (active litigation records exemption)
• N.D.C.C. § 26.1-23.1-06(1) (government self-insurance pool reserves confidentiality)
• N.D.C.C. § 44-04-21.2 (civil enforcement; mandatory costs; personal liability)
• Hagen v. NDIRF, 2022 ND 53, 971 N.W.2d 833
• N.D.A.G. 99-O-02 (NDIRF subject to open records; reserves exception is narrow)
• N.D.A.G. 94-L-194 (exemptions construed narrowly)

Source

• Landing page: https://attorneygeneral.nd.gov/ndirf/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2025/12/2025-O-21.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-21

DATE ISSUED: December 5, 2025
ISSUED TO: North Dakota Insurance Reserve Fund

CITIZEN'S REQUEST FOR OPINION

Michelle Kommer requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the North Dakota Insurance Reserve Fund violated N.D.C.C. § 44-04-18 by refusing to provide records pertaining to a water main break.

FACTS PRESENTED

On February 7, 2023, a water main broke in front of the commercial property owned by Michelle and Toby Kommer, located in Fargo, North Dakota. The incident allegedly caused significant flooding and property damage to the basement of the business, including damage to the boilers, elevator equipment, and stored personal property. According to the Kommers, a City of Fargo crew chief on site assured them that the City's insurance would cover the damage and provided contact information for filing a claim. Based on this representation, Michelle Kommer, acting on behalf of the business, submitted a third-party liability claim against the City of Fargo, a member of the North Dakota Insurance Reserve Fund (NDIRF).

On February 14, 2023, NDIRF Claims Adjuster Jordan Wahl informed the Kommers that, based on his preliminary investigation, the water main break was caused by environmental conditions and that he had found no evidence of negligence by the City. He stated that the City had responded in a timely manner, and the NDIRF would not be making payment on the claim.

During the course of communications regarding the claim, on February 15, 2023, Toby Kommer submitted a written request for "a copy of the policy, any notes you have, or anything else relating to this claim that is available to me via an open records request." Mr. Wahl responded, indicating that the Memorandum of Coverage was publicly available on the NDIRF website and stated that "the claim information . . . is confidential under N.D. Cent. Code § 26.1-23.1-06."

In response, Mr. Kommer disputed the NDIRF's interpretation of the confidentiality statute, arguing the statute cited "does not prevent you from sharing your investigative file with us — it merely prevents the public (a person) from obtaining specific dollar amounts relating to the fund or claims." Mr. Kommer stated the Kommers would be "moving forward with litigation" and requested that the damaged water pipe be preserved. However, on February 17, 2023, he noted that they had not yet retained legal counsel.

Following this exchange, Michelle Kommer sought further clarification from Mr. Wahl regarding the denial. Unsatisfied with Mr. Wahl's responses, she requested contact information for his supervisor, Michelle Lang, Assistant Director of Claims at the NDIRF. Ms. Kommer repeated her request for the investigative file. In response, Ms. Lang emailed the Kommers that, after reviewing Mr. Wahl's investigation, NDIRF found no evidence to support holding the City of Fargo or its employees liable for the damages sustained. Ms. Lang also stated that the Kommers' open records request was exempt from disclosure under N.D.C.C. § 44-04-18, citing a litigation exemption under N.D.C.C. § 44-04-19.1(12) and referencing a prior email from Brennan Quintus, NDIRF's Chief Executive Officer.

Later that same day, on February 23, 2023, Mr. Quintus emailed Michelle Kommer directly in response to her open records request. In his message, he stated that NDIRF had been notified on February 15, 2023, that the Kommers were "moving forward with litigation," and notified on February 17, 2023, that the Vogel Law Firm had been engaged to initiate legal action. Based on this, Mr. Quintus asserted the claim file had been "compiled and prepared by the NDIRF for the purpose of litigation" and was therefore exempt from disclosure as "active litigation records" under N.D.C.C. § 44-04-19.1(12).

In a reply dated February 27, 2023, Ms. Kommer disputed this characterization and application of the litigation exemption, stating that while litigation had been discussed during a period of emotional distress, the Kommers had clarified on February 17th that no attorney had been retained. She expressed frustration that their concerns were not fully considered and again requested production of the requested records.

On March 2, 2023, Mr. Quintus reaffirmed the NDIRF's denial of both the claim and the open records request, again citing the active litigation exemption. Ms. Kommer responded the same day, asserting that NDIRF's refusal was improper and reiterating that litigation was neither ongoing nor contemplated. She again requested the statutes, policies, or procedures that the NDIRF relied upon to deny the claim.

Following a follow-up email from Ms. Kommer, Mr. Quintus replied on March 10, 2023, stating the NDIRF's position had not changed and that there was nothing further the NDIRF could provide.

ISSUE

Whether the NDIRF violated N.D.C.C. § 44-04-18 by refusing to provide requested records.

ANALYSIS

The NDIRF, as an agency of the political subdivision of the City of Fargo, is a "public entity" subject to open record laws. "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." When a public entity receives a request for records, it must, within a reasonable time period, either provide the records or explain why the records are not being provided. If a public entity denies a records request, the denial must indicate the entity's specific legal authority for denying access to the requested record and be made in writing, if requested. A public entity may not deny a request for an open record on the ground the record also contains confidential or closed information. "[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."

The NDIRF initially denied the Kommers' request for records on the basis that the claim file contained confidential information exempt from disclosure under N.D.C.C. § 26.1-23.1-06, which provides:

Information regarding that portion of the funds or liability reserves of a government self-insured pool established for purposes of satisfying a specific claim or cause of action is confidential. A person is not entitled to discover that portion of the funds or liability reserves established for purposes of satisfying a claim or cause of action, except that the reserve is discoverable in any supplementary or ancillary proceeding to enforce a judgement against the pool or a governmental entity participating in the pool.

Previously, this office explained that the exception in N.D.C.C. § 26.1-23.1-06 for confidential information in a government self-insurance pool's claim file is narrow. Only records specifically referring to "the amount of reserves set aside for a claim" fall under this exception. Other documents in the claim file, even if used to help determine reserves, are not exempt from disclosure.

NDIRF, however, denied the records request in its entirety on February 15, 2023, stating "the claim information . . . is confidential under N.D. Cent. Code § 26.1-23.1-06." A public entity may not deny access to an entire record, or in this case, an entire claim file, simply because it contains some confidential information. Instead, it must redact the portions that are confidential and release the remainder.

When the NDIRF did not provide a redacted file, the Kommers again requested the records on February 21, 2023. This time, NDIRF denied the request under the litigation exemption outlined in N.D.C.C. § 44-04-19.1(12), citing "threatened litigation." Their reasoning was based on Mr. Kommer's February 15th statement that they were "moving forward with litigation" after being denied the file. However, on February 17th, the Kommers clarified that no attorney had been retained and that litigation was neither ongoing nor contemplated.

The file requested on February 15th was the same file requested on February 22nd. The only notable event was that after being denied the file, Mr. Kommer mentioned — but did not substantiate — litigation. The file was still one compiled in the ordinary course of business to evaluate liability, a routine function of the NDIRF that occurs regardless of whether litigation ultimately happens.

Exemptions under the open records laws are to be "narrowly construed" to effectuate the basic policy in favor of public access to government records. Section 44-04-19.1(12), N.D.C.C., provides:

Unless subject to subsection 6 of section 44-04-18, active litigation records are exempt from section 44-04-18. For purposes of this subsection, "active litigation records" means records obtained, compiled, or prepared by a public entity or the attorney representing a public entity for the purpose of litigation unless the records already have been filed publicly or the litigation is completed.

The requested records were not created "for the purpose of litigation" as required by the statute. The perhaps off-handed use of the word "litigation" did not transform the file that should have been released on February 15th into a litigation file one week later.

A vague or speculative assertion of future litigation is insufficient to invoke the exemption in N.D.C.C. § 44-04-19.1(12). To interpret the statute so broadly would substantially expand the exemption beyond its plain language, effectively preventing public access to a significant volume of records. For the "active litigation records" exemption to apply, the public entity must demonstrate that the specific records were prepared for the purpose of litigation, not merely in the course of evaluating or responding to a claim. Accordingly, the NDIRF initially violated N.D.C.C. § 44-04-18 when it failed to turn the file over due to an overbroad interpretation of N.D.C.C. § 26.1-23.1-06. Seven days later, the NDIRF again violated the law by claiming that same file constituted "active litigation records."

CONCLUSION

The NDIRF violated N.D.C.C. § 44-04-18 by refusing to provide the requested records.

STEPS NEEDED TO REMEDY VIOLATION

The NDIRF must provide the requested records to the Kommers at no charge but may excise information that is confidential under N.D.C.C. § 26.1-23.1-06.

While I have every reason to expect the NDIRF will remedy this situation in accord with this opinion, failure to take those corrective measures 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
amr
cc: Michelle Kommer