If a state agency deletes a meeting video on a records-retention schedule and a journalist asks for it later, is that a violation of the open records law?

Plain-English summary

Masaki Ova, a Jamestown Sun reporter, asked the Retirement and Investment Office (RIO) on November 18, 2024, for the video recording of the State Investment Board's February 23, 2024, meeting. RIO's communications director responded the same day: the recording was no longer available because the agency's record retention schedule only kept SIB meeting recordings for six months. RIO sent the meeting minutes as the substitute. Mr. Ova followed up; RIO provided more detail about the schedule. Mr. Ova then asked the AG whether the deletion was a violation.

The AG said no. The bedrock principle in North Dakota's open records law is that an agency only has to provide records it actually holds. N.D.C.C. § 44-04-18(4) is explicit: a public entity does not have to "create or compile a record that does not exist." That rule extends to records that once existed but have been disposed of in accordance with the agency's published records-retention schedule.

RIO's schedule allows deletion of SIB meeting recordings after six months. The reasoning: the agency uses recordings to draft accurate minutes, then disposes of them. Mr. Ova's request came almost nine months after the meeting. The recording had been deleted on October 15, 2024, in compliance with the schedule. RIO's disposal log documents the deletion. The minutes, the official record of the meeting, remained available and were provided.

A few takeaways the opinion does not say but implies. First, retention schedules need to be public, documented, and followed. RIO produced both the schedule and the disposal log. Second, the agency should respond promptly to a request even when the record no longer exists; explaining the schedule and providing alternative records (the minutes here) is the right response. Third, requesters who want the underlying recording need to ask within the retention window. For SIB recordings, six months.

What this means for you

If you requested a record from a North Dakota public entity and were told it no longer exists

The opinion holds that a public entity does not violate N.D.C.C. § 44-04-18 by failing to produce a record that has been disposed of in accordance with the entity's published records-retention schedule. The opinion treats records "properly disposed of" under such a schedule as no longer in the entity's possession, which by N.D.C.C. § 44-04-18(4) means there is no duty to produce them.

If you are a state agency records officer in North Dakota

The opinion notes specific features of RIO's response that supported the no-violation finding: a same-day reply explaining the record was no longer available, a citation to the retention schedule, and a disposal log documenting that the deletion occurred on schedule. The opinion also notes that RIO supplied the meeting minutes as the alternative record that remained available.

If you are looking for a recording of a North Dakota State Investment Board meeting

The opinion describes RIO's retention schedule (Information Technology 220109 series) as providing for six months of retention for SIB meeting recordings, after which recordings may be disposed of. The minutes remain available as the official meeting record.

Common questions

Why does the records-retention schedule matter?

Because the AG's opinion practice treats records "properly disposed of" under a schedule as no longer in the agency's possession. Without a schedule, ad hoc deletion is harder to defend. Schedules document the reason for keeping records for a given period and the basis for deleting them.

What is the retention schedule for State Investment Board recordings?

Six months. The schedule cited in the opinion is "Audio recordings of the open portion of the meetings of the State Investment Board and its committees" (Information Tech. 220109 series). The reasoning is that the recordings serve only to support the production of accurate minutes; once minutes are finalized, the recordings can be disposed of.

Is six months too short?

That's a policy question, not a legal one. The opinion does not opine on schedule length. Other states and other ND agencies have longer retention. Advocates who want longer retention can engage with the agency or the legislature to extend the schedule.

What if the agency claims to have deleted but didn't?

Then the records would still be in the agency's possession and would have to be produced. Anyone challenging a "we deleted it" response can ask for the disposal log to confirm the deletion was real and on schedule.

Does this rule cover paper records too?

Yes. The "no obligation to create records that do not exist" rule applies regardless of format. Paper records disposed of under a retention schedule are also outside the agency's possession for open-records purposes.

Does North Dakota's open meetings law require recordings?

The open meetings law requires minutes (which RIO maintained), but it does not require recordings. Recordings are an internal tool. An agency can choose to record meetings to assist with minute-taking and then dispose of the recording when minutes are finalized.

Background and statutory framework

The general open records statute, N.D.C.C. § 44-04-18(1), declares all records of a public entity public except as specifically provided by law. Subsection (2) requires the entity to furnish one copy upon request. Subsection (4) is the operative provision here: a public entity does not have to "create or compile a record that does not exist" and only has to search records in its possession.

The AG opinion authority, § 44-04-21.1(1), requires the AG to base opinions on "the facts given by the public entity." This procedural posture means the agency's representations about what it has, and what it deleted, are taken as true unless plainly unsupported.

The State Investment Board (SIB) is the policy oversight body for RIO's investment activities, including the Legacy Fund. Its meetings are public and minutes are required. Recordings are kept under a state records retention schedule (Information Technology 220109 series) maintained by the Records Management program in the ND Information Technology Department, accessible at apps.nd.gov/itd/recmgmt. The schedule cited in the opinion is "Audio recordings of the open portion of the meetings of the State Investment Board and its committees," and provides for retention of six months from creation.

The records-properly-disposed principle is not a single statute but a synthesis of subsection (4) (no obligation to create non-existent records) plus the AG's deference to factual findings. The principle is applied across multiple opinions: N.D.A.G. 2023-O-09; 2023-O-08; 2023-O-07; 2007-O-06; 2024-O-02; 2015-O-14.

Citations

The general open records statute: N.D.C.C. § 44-04-18, particularly subsections (1) (open by default), (2) (production requirement), (4) (no obligation to create non-existent records). The AG opinion authority: N.D.C.C. § 44-04-21.1, particularly subsection (1) (opinion based on the facts the entity provides). Prior AG opinions on the records-in-possession principle: N.D.A.G. 2013-O-18; 2011-O-10; 2023-O-09; 2023-O-08; 2023-O-07; 2007-O-06; 2024-O-02; 2015-O-14.

Source

• Landing page: https://attorneygeneral.nd.gov/retirement-and-investment-office-rio/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2025/12/2025-O-23.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-23

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

CITIZEN'S REQUEST FOR OPINION

Masaki Ova, a reporter for the Jamestown Sun, 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 failing to provide a record.

FACTS PRESENTED

On November 18, 2024, Mr. Ova requested the video of the State Investment Board (SIB)'s February 23, 2024, meeting. Sarah Mudder, RIO's Communications and Outreach Director, responded to Mr. Ova's request the same day. Ms. Mudder stated "[t]he recording is no longer available" and provided a link to the February 23, 2024, meeting minutes. Mr. Ova responded asking why the recording was no longer available. Ms. Mudder promptly responded explaining RIO's record retention schedule only requires retention of SIB's meeting recordings for six months.

According to RIO, "SIB meeting recordings are retained by RIO for a period of six months to allow the agency's administrative staff time to complete meeting minutes. Meetings are conducted using Microsoft Teams and the recordings are saved to the cloud. When a request is received, if the recording is available, a link to the recording is provided."

In correspondence with this office, RIO provided a copy of its disposal log, titled "Board and Committee Recordings Disposal," for Fiscal Year 2025 (July 1, 2024 through June 30, 2025) which shows the requested record had been deleted on October 15, 2024.

ISSUE

Whether RIO violated the open records law by failing to provide a record.

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." 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. Any attorney general opinion issued under N.D.C.C. § 44-04-21.1 shall be based on the facts given by the public entity.

RIO's record retention schedule allows for deletion of SIB meeting recordings after six months. Mr. Ova's request was made almost nine months from the date of the meeting. RIO promptly explained to Mr. Ova that it no longer had the meeting recording he requested. RIO had no duty to create records it had properly disposed of in accordance with its record retention schedule. The requested record was deleted in accordance with RIO record keeping policy and was, therefore, not in the possession of RIO. It is my opinion RIO properly responded to this request for records.

CONCLUSION

RIO did not violate open records law when it was unable to provide a record that no longer exists.

Drew H. Wrigley
Attorney General

cc: Masaki Ova