Can the public get a list of which specific companies and how much money each individual investment manager has put the North Dakota Legacy Fund into?

Plain-English summary

Tory Jackson, a North Dakota attorney, asked the Retirement and Investment Office (RIO) for detailed records on the Legacy Fund. He wanted aggregate lists of foreign and domestic holdings, but he also wanted them broken down by individual asset manager, plus the dollar amounts those managers had put into specific firms (Lewis & Clark Agrifood, Homegrown Capital, Longwater Opportunities, Gener8tor, Badlands Capital). RIO published the aggregate Legacy Fund holdings online and pointed him to the page; for the breakdown of foreign/domestic investments by individual asset manager, RIO declined, citing the confidentiality of "commercial and financial information" under N.D.C.C. § 44-04-18.4.

The AG's opinion ruled in RIO's favor on both contested points.

On manager-specific positions: the records fit within § 44-04-18.4's confidentiality framework. To be confidential under that section, financial information must (1) pertain to monetary resources, (2) not have been previously publicly disclosed, and (3) either impair the entity's future ability to obtain such information or cause substantial competitive injury to the source. RIO's documentation hit all three. Disclosing how much each manager has put into which fund would let competitors back-engineer the manager's investment strategy. RIO pays up to $100 million in manager fees per year for that strategy expertise; managers could fire RIO as a client if RIO leaks their playbook. And the Legacy Fund itself loses negotiating use with future managers if every prior allocation is public knowledge. So the privileged-nature requirement is satisfied. The AG defers to RIO's factual determination on whether the records are privileged.

On the by-country breakdown: Mr. Jackson asked for a country-by-country split, and the records he received included regions ("Emerging Market Region," "Global Region," "International Region") rather than countries. RIO explained that the regional records came from its custodian bank and that the underlying funds are commingled or mutual funds where the country-of-risk data is not held at the holdings level. RIO does not have the country-by-country breakdown in its possession. North Dakota law does not require an entity to create records that do not exist. So no violation on this point either.

The AG's overall message is consistent with prior practice: financial-information confidentiality under § 44-04-18.4 is a real, working exemption that public entities can lean on for vendor-strategy and counterparty information. But the entity has to make the factual determination on the record and document the basis.

What this means for you

If you work in a state investment office: Document the privilege claim in your file before you deny. The AG explicitly defers to the agency's factual determination, but only if the determination is supported. RIO's response letter walked through (a) it's financial information, (b) it has not been disclosed, (c) disclosure causes substantial competitive injury, and (d) disclosure impairs future information-gathering. That's the playbook to follow.

If you are a journalist or watchdog covering public investment funds: The aggregate Legacy Fund holdings are public and posted online. The manager-by-manager breakdown is not. Don't waste a records request asking for the manager-level breakdown directly; you will get the same § 44-04-18.4 denial. Better requests: aggregate sector exposure, asset class breakdown, total fees paid, due-diligence reports (some of which may be public), board minutes (open under the meetings statute).

If you are an attorney representing requesters: This opinion sets the bar for "privileged" pretty high but workable for the agency. To challenge a § 44-04-18.4 denial, you need to attack one of the three elements: (1) is it really financial or commercial information, (2) has it really not been previously disclosed, (3) is the agency's competitive-injury or future-impairment claim supported. Element (3) is the soft target; if the agency just asserts harm without specifics, push back.

If you are a state legislator or member of the State Investment Board: The privilege protects the fund's competitive position, but it limits oversight. If you want manager-level transparency, the route is statutory, not records-law. A statute amendment to § 44-04-18.4 or a Legacy-Fund-specific transparency provision would override the AG's reading. Without that, the agency stays in control.

Common questions

Why does manager-specific information get confidential treatment?

Three reasons the AG accepted. First, RIO pays up to $100 million a year in management fees, and the value to RIO is the manager's investment strategy. Public disclosure of positions reverse-engineers the strategy and destroys the value. Second, managers can terminate the relationship if confidentiality is breached. Third, the Legacy Fund's future negotiating use with new managers depends on prior commitments staying private.

What's the test for "privileged" financial information?

Three elements: (1) it pertains to monetary resources, (2) it has not been previously publicly disclosed, and (3) disclosure either impairs the entity's future ability to obtain necessary information or causes substantial competitive injury. The third element is the load-bearing one.

Who decides whether information is privileged?

The public entity makes the factual determination. The AG's role is limited to checking that the determination is supported by the facts the agency provides. The AG does not second-guess reasonable factual judgments. N.D.C.C. § 44-04-21.1(1) requires the AG to base opinions on the entity's facts.

Does this rule apply to all state agencies, or just RIO?

Section 44-04-18.4 applies to any public entity. The same three-element test would govern, for example, ND Mill and Elevator's customer list (covered in N.D.A.G. 2014-O-02) or UND Bookstore's textbook list (covered in N.D.A.G. 2004-L-25).

Why did the by-country question fail?

Because RIO does not have records broken down by country for those particular regional funds. The regional designations come from the custodian bank, and the underlying fund structure does not break down to country level. N.D.C.C. § 44-04-18(4) does not require a public entity to create records that do not exist.

What's the federal influence on this analysis?

The North Dakota § 44-04-18.4 definitions historically tracked the D.C. Circuit's interpretation of "commercial or financial information" under federal FOIA, articulated in Nat'l Parks & Conservation Ass'n v. Morton (1974). The U.S. Supreme Court abrogated that interpretation in Food Mktg. Inst. v. Argus Leader Media (2019). North Dakota's statutory definitions did not change in response, so the federal shift does not change the state-law analysis.

How would the public get the aggregate Legacy Fund picture?

Through RIO's published monthly performance reports on its Legacy Fund webpage. Those are public. So is total fund size, asset allocation, and aggregate performance. Manager-level detail is the line.

Background and statutory framework

The Legacy Fund is North Dakota's sovereign-wealth-style fund, with assets accumulated from oil and gas production-tax revenue. It is managed by RIO under N.D.C.C. ch. 54-52.5 and overseen by the State Investment Board (SIB). RIO is a public entity subject to the open records law. N.D.C.C. § 44-04-17.1(13)(a).

The general open records rule, § 44-04-18(1), is that all records of a public entity are public except as otherwise specifically provided by law. Section 44-04-17.1(3) defines "confidential" as records prohibited from being open to the public.

The financial/commercial information exemption, § 44-04-18.4(1), provides: "Financial information and commercial information are confidential if it is of a privileged nature and it has not been previously publicly disclosed." Subsection (2)(b) defines "financial information" with three elements:
1. Information pertaining to monetary resources of a person.
2. That has not been previously publicly disclosed.
3. That either (a) would impair the public entity's future ability to obtain necessary information, or (b) would cause substantial competitive injury to the person from which the information was obtained.

Subsection (2)(a) defines "commercial information" with parallel elements (substituting "buying or selling of goods and services" for "monetary resources").

The privilege analysis is a factual determination by the public entity. N.D.A.G. 2019-O-12. The AG defers to the agency's findings unless unsupported.

The federal influence: § 44-04-18.4's structure was modeled on the D.C. Circuit's interpretation of federal FOIA Exemption 4 in Nat'l Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974). The Supreme Court repudiated that test in Food Mktg. Inst. v. Argus Leader Media, 588 U.S. 427 (2019), but North Dakota retained its statutory definitions, so the shift in federal law does not change the state analysis.

The records-in-possession rule, § 44-04-18(4), provides that a public entity does not have to "create or compile a record that does not exist." That is what defeated the by-country breakdown request. N.D.A.G. opinions repeatedly applying this rule: 2023-O-09; 2023-O-08; 2023-O-07.

Citations

The general open records statute: N.D.C.C. § 44-04-18, particularly subsections (1) (open by default), (2), (4) (no obligation to create records). The records-confidentiality framework: N.D.C.C. § 44-04-17.1(3); § 44-04-18.4(1)-(2). The agency-is-public-entity framework: N.D.C.C. § 44-04-17.1(13)(a); ch. 54-52.5 (RIO). Federal influence: 15 U.S.C. § 78m(f)(3); Nat'l Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974); Food Mktg. Inst. v. Argus Leader Media, 588 U.S. 427 (2019). Prior AG opinions on the framework: N.D.A.G. 2019-O-12; 2014-O-02; 2005-O-06; 2004-O-01; 2002-O-08; 2000-L-107; 98-O-22; 98-L-17; 2013-O-18; 2011-O-10; 2023-O-07/08/09; 2007-O-06; 2024-O-02; 2015-O-14.

Source

• Landing page: https://attorneygeneral.nd.gov/retirement-and-investment-office-2/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2025/12/2025-O-22.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

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-22

DATE ISSUED: December 5, 2025
ISSUED TO: Retirement and Investment Office

CITIZEN'S REQUEST FOR OPINION

Tory Jackson requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the Retirement and Investment Office (RIO) violated N.D.C.C. § 44-04-18 by improperly responding to a request for records.

FACTS PRESENTED

On January 15, 2024, Mr. Jackson requested records regarding Legacy Fund investment holdings from RIO. He specifically requested:

The current list of all foreign holdings in the Legacy Fund listed in alphabetical order by country;
The current list of all domestic holdings in the Legacy Fund listed in alphabetical order by company;
The current list of all foreign investments in the Legacy Fund sorted by each asset/money manager;
The current list of all domestic investments in the Legacy Fund sorted by each asset/money manager;
The current amount of Legacy Fund monies that has been distributed to date to 50 South Capitol;
The amount of money that 50 South Capitol has then invested in each of the following five companies/managers: Lewis & Clark Agrifood, Homegrown Capital, Longwater Opportunities, Gener8tor, Badlands Capital;
The investments that have been made by the five firms listed above with money from the Legacy Fund provided to 50 South Capital.

That same day, Janilyn Murtha, Executive Director, responded to Mr. Jackson, confirmed receipt of his request, and informed him that due to the state holiday that day, RIO's Communications Director, Sarah Mudder, would contact him within the next few days to provide a time and cost estimate. On January 17, 2024, Ms. Mudder replied to Mr. Jackson's request. In response to his requests for "[t]he current list of all foreign holdings in the Legacy Fund listed in alphabetical order by country" and "[t]he current list of all domestic holdings in the Legacy Fund listed in alphabetical order by company" Ms. Mudder sent Mr. Jackson "a link to the Legacy Fund's webpage where monthly performance reports are posted that list the fund's foreign holdings . . . and domestic holdings. . . ." In response to Mr. Jackson's requests for "[t]he current list of all foreign investments in the Legacy Fund sorted by each asset/money manager" and "[t]he current list of all domestic investments in the Legacy Fund sorted by each asset/money manager" Ms. Mudder "informed Mr. Jackson where to find information on RIO's asset/money managers . . . and informed him that manager-specific position information . . . is confidential commercial and financial information under NDCC 44-04-18.4." Ms. Mudder did provide Mr. Jackson with the "current commitment, i.e., the current amount of [Legacy Fund] mon[ies] distributed to the ND Growth Fund, as managed by 50 South Capitol." Ms. Mudder denied Mr. Jackson's last two requests for "the specific dollar amounts . . . invested in the five companies/manager because, while holding level data for some funds is publicly available, these private market investments . . . are confidential commercial and financial information under NDCC 44-04-18.4."

Ms. Mudder also informed Mr. Jackson that RIO could run a "position query" for Legacy Fund holdings by name and country, however, it would require RIO to perform a search for which they would need to charge a fee. On January 29, 2025, Emmalee Riegler, Procurement/Records Coordinator for RIO, acknowledged the receipt of payment of Mr. Jackson's fee, and provided an additional response to Mr. Jackson.

According to Mr. Jackson, RIO did provide lists of the Legacy Fund's foreign and domestic holdings. However, RIO denied Mr. Jackson's request for foreign and domestic holdings records by asset/money manager, "claiming that 'manager specific position information is confidential commercial and financial information under NDCC 44-04-18.4.'" Mr. Jackson also questions the responsiveness of the records provided on January 29, 2024. He had requested "a breakdown of investments by country," however, the provided records include investments in the "Emerging Market Region," "Global Region," and "International Region" but with no additional breakdowns provided.

ISSUES

1. Whether RIO violated the open records laws by denying a request for records containing certain investment manager specific information provided to RIO as confidential under N.D.C.C. § 44-04-18.4.

2. Whether RIO violated the open records law by failing to provide a breakdown of its investments by country.

ANALYSIS

Issue 1

RIO is a public entity and is subject to the open record law. "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." Confidential records are "prohibited from being open to the public."

Financial information and commercial information are "confidential if it is of a privileged nature and it has not been previously publicly disclosed." Financial information means (1) information pertaining to monetary resources of a person (2) that has not been previously publicly disclosed and (3)(a) that if the information were to be disclosed would impair the public entity's future ability to obtain necessary information or (3)(b) would cause substantial competitive injury to the person from which the information was obtained. Financial information "is defined broadly to include all information pertaining to finances or monetary resources." Commercial information means (1) information pertaining to buying or selling of goods and services that (2) has not been previously publicly disclosed and (3)(a) that if the information were to be disclosed would impair the public entity's future ability to obtain necessary information or (3)(b) would cause substantial competitive injury to the person from which the information was obtained.

"Information is of a privileged nature only if disclosing the records is likely to impair the public entity's ability to obtain necessary information in the future, or if it is likely to cause substantial harm to the competitive position of the entity supplying the information." Whether a record contains commercial or financial information of a privileged nature is "generally a factual decision to be made by the public entity," because the public entity "is in the best position to determine the effect of disclosure." This office is required to base an open records opinion on "the facts given by the public entity" and generally defers to those "findings of fact unless the finding is unsupported."

Here, RIO has asserted that the requested information was privileged and that the information has not previously publicly disclosed, the latter of which Mr. Jackson does not dispute. The privileged nature of the information is a factual determination made by the agency. Therefore, this opinion will focus on whether the requested records contained financial or commercial information as defined in N.D.C.C. § 44-04-18.4.

First, to be considered financial information, the information must be "information pertaining to monetary resources of a person." The requests by Mr. Jackson were for the investments and moneys invested by each asset/money manager. The requested records clearly fall within the broad definition of "financial information." Because the requested information is obviously "financial information," and "financial information" and "commercial information" have identical additional elements, this office need not address whether the information may also constitute "commercial information."

Second, we must determine whether disclosure of the information would either (a) "impair the public entity's future ability to obtain necessary information" or (b) "cause substantial competitive injury to the person from which the information was obtained." As RIO assessed:

Manager-specific positions constitute confidential . . . financial information because it is financial information relating to the buying and selling of securities that illustrate the manager's investment strategies and have not been previously publicly disclosed. This information has commercial value that RIO on behalf of the state pays up to $100 million in manager fees every year to receive. Releasing such information has the potential to cause substantial competitive injury to both the investment manager from the public disclosure of its investment strategy as well as the potential to negatively impact the performance of the public funds invested by those managers. . . . Disclosure would also greatly impair RIO's ability to obtain such information in the future because investment managers can terminate a client relationship if the client is unable to maintain the confidentiality of its investment strategy.

In other words, RIO states that the investment managers would suffer substantial competitive injury by disclosure of that information, and RIO's ability to obtain the information in the future would be impaired by disclosing the information. Additionally, RIO found that the funds it invests would be negatively impacted by disclosing how much it has invested in any given fund manager because:

The ability for the Fund to make investments in underlying funds without (i) other fund managers or (ii) other investors knowing the fact that the Fund has invested in any given fund manager and/or the size of the Fund's investment in any such manager directly impacts the Fund's negotiating power in connection with such investments, which the Fund is able to utilize to negotiate favorable terms. If the investment information is made publicly available, the Fund and any other co-investors would suffer substantial competitive injury, as the Fund may lose negotiating leverage with underlying managers or potentially lose investment opportunities altogether.

In essence, RIO itself would be suffering both an impairment of its future ability to obtain the necessary information, but also substantial competitive injury as a result of the information's disclosure. Even the disclosure of aggregate information regarding a fund manager's position can result in the need for confidentiality. RIO's assessment of the privileged nature of the requested records is reasonable, and I therefore conclude that RIO substantially complied with N.D.C.C. § 44-04-18 by denying a request for financial information which is confidential under N.D.C.C. § 44-04-18.4.

Issue 2

"Upon a request for a copy of specific public records," a public entity "shall furnish the requester one copy of the public records requested." The public entity must either provide or deny the record in a reasonable time. A public entity does not have to "create or compile a record that does not exist" and only has to search the records in its possession. In addressing such matters, an attorney general opinion issued under N.D.C.C. § 44-04-21.1 shall be based on "the facts given by the public entity."

Mr. Jackson requested "a breakdown of investments by country." The records RIO provided included investments organized by "Emerging Market Region," "Global Region," and "International Region." According to RIO, the records including investments in the Emerging Market, Global, and International Regions provided to Mr. Jackson were "comingled or mutual funds and therefore not limited to a single country." RIO's position is that they do not "have a view into these holdings, meaning the Country(ies) of Risk are not a part of the holdings' records" and they simply provided Mr. Jackson with "the unaltered record from [their] custodian bank."

Based on the information provided to this office, requested breakdown by country for the Emerging Market, Global, and International Regions does not exist. While there may have been clearer ways for RIO to explain the regional breakdown to Mr. Jackson, RIO was under no legal obligation to create records that did not exist. I conclude that RIO complied with N.D.C.C. § 44-04-18 because the requested records do not exist.

CONCLUSIONS

1. RIO did not violate the open records law by denying a request for records containing certain investment manager specific information provided to RIO as confidential financial information under N.D.C.C. § 44-04-18.4.

2. RIO did not violate the open records law when it did not provide a breakdown of investments by country as RIO is not obligated under N.D.C.C. § 44-04-18 to create records that do not exist.

Drew H. Wrigley
Attorney General

cc: Tory Jackson