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

A Jamestown Sun reporter requested the video of the State Investment Board's February 23, 2024, meeting on November 18, 2024. The Retirement and Investment Office (RIO) replied that day that the recording was no longer available and linked to the meeting minutes. When the reporter asked why, RIO explained that its schedule retained the meeting recordings for six months. A disposal log RIO later gave the Attorney General showed the requested recording had been deleted on October 15, 2024.

The Attorney General found no open records violation. The opinion says 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. RIO's schedule allowed deletion after six months; the reporter's request came almost nine months after the meeting. The AG concluded that the requested recording had been deleted in accordance with RIO's record keeping policy and was no longer in its possession.

The opinion addresses this request and this deletion. It does not determine whether six months is an appropriate retention period or whether a different agency may delete a different record.

What this means for you

If you requested a State Investment Board meeting recording

The opinion describes a six-month retention schedule for recordings of the open portion of State Investment Board and committee meetings. RIO said it provided a recording link when one was still available. Here, it linked to the February 23, 2024, minutes after the recording had been deleted. If you need a recording, the timing of your request matters under the schedule described in this opinion.

If you handle records requests for RIO

RIO explained that the recording was unavailable, identified its retention period when asked, and supplied a disposal log to the Attorney General. The AG treated the deletion under RIO's schedule as decisive to whether RIO still possessed the requested recording. Check the record's actual status and applicable schedule before relying on this opinion for a response.

Common questions

Does the opinion require RIO to recreate a deleted recording?

No. It says RIO "had no duty to create records it had properly disposed of in accordance with its record retention schedule." The AG concluded RIO did not violate open records law because the recording no longer existed.

When was this recording deleted?

RIO's disposal log showed deletion on October 15, 2024. The reporter requested it on November 18, 2024, almost nine months after the meeting.

What did RIO provide instead?

Its first response linked to the February 23, 2024, meeting minutes. The opinion does not describe the contents of those minutes.

Does the opinion decide how long all meeting recordings must be kept?

No. It reports that RIO's schedule allowed deletion of SIB meeting recordings after six months and decides whether RIO violated open records law when it could not supply this recording.

What evidence did the Attorney General have that the recording was gone?

RIO provided a disposal log showing the requested recording was deleted on October 15, 2024. The opinion also notes that opinions under N.D.C.C. § 44-04-21.1 are based on the public entity's facts.

Background and statutory framework

N.D.C.C. § 44-04-18(1) generally makes public entity records open for inspection, and subsection (2) requires a copy of requested public records. The opinion says a public entity must provide or deny a record within a reasonable time. It quotes the rule that an entity need not "create or compile a record that does not exist" and need only search records in its possession, citing subsection (4).

The schedule RIO sent to the reporter covered "audio recordings of the open portion of the meetings of the State Investment Board and its committees." RIO told the AG that it used the recordings to complete minutes and retained them for six months. The opinion says its schedule allowed deletion at that point. Because the requested recording had been deleted before the request in accordance with RIO's policy, the AG found that RIO no longer possessed it.

Citations from the opinion

• N.D.C.C. § 44-04-18(1), (2), and (4)
• N.D.C.C. § 44-04-21.1(1)
• N.D.A.G. 2013-O-18; 2011-O-10; 2023-O-09; 2023-O-08; 2007-O-06; 2023-O-07; 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

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.¹ Sarah Mudder, RIO's Communications and Outreach Director, responded to Mr. Ova's request the same day.² Ms. Mudder stated "[t]he recording is no longer available" and provided a link to the February 23, 2024, meeting minutes.³ Mr. Ova responded asking why the recording was no longer available.⁴ Ms. Mudder promptly responded explaining RIO's record retention schedule only requires retention of SIB's meeting recordings for six months.⁵

According to RIO, "SIB meeting recordings are retained by RIO for a period of six month 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."⁶

¹ Email from Masaki Ova, Rep., Jamestown Sun, to Sarah Mudder, Comm'n & Outreach Dir., Ret. & Inv. Off. (Nov. 18, 2024, 1:26 PM); Email from Masaki Ova, Rep., Jamestown Sun, to Office of Att'y Gen. (Dec. 17, 2024, 12:49 PM).

² Email from Sarah Mudder, Comm'n & Outreach Dir., Ret. Inv. Off., to Masaki Ova, Rep., Jamestown Sun (Nov. 18, 2024, 1:34 PM).

³ Id.

⁴ Email from Masaki Ova, Rep., Jamestown Sun, to Sarah Mudder, Comm'n & Outreach Dir., Ret. Inv. Off. (Nov. 18, 2024, 1:40 PM).

⁵ Email from Sarah Mudder, Comm'n & Outreach Dir., Ret. Inv. Off., to Masaki Ova, Rep., Jamestown Sun (Nov. 18, 2024, 1:51 PM). Ms. Mudder provided a screenshot of the record retention schedule to Mr. Ova. The schedule she provided is for "audio recordings of the open portion of the meetings of the State Investment Board and its committees." N.D. Info. Tech., 220109 – State Inv. Bd. Recordings Open, Ret. & Inv. Office – Inv. (1900 – 002) https://apps.nd.gov/itd/recmgmt/rm/recSer/confirmMaintain/3919?divId=98&divSelected=false.

⁶ Letter from Jodi Smith, Interim Exec. Dir., Ret. Inv. Off., to Annique M. Lockard, Assistant Att'y Gen., Office of Att'y Gen. (Feb. 12, 2025).

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, 2024.⁷

⁷ Id.

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."⁸ Upon a request for a copy of specific public records, a public entity shall furnish the requester one copy of the public records requested.⁹ The public entity must either provide or deny the record in a reasonable time.¹⁰ 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.¹¹ 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.¹²

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.

⁸ N.D.C.C. § 44-04-18(1). See also N.D.A.G. 2013-O-18; 2011-O-10.

⁹ N.D.C.C. § 44-04-18(2). See also N.D.A.G. 2023-O-09; 2023-O-08; 2013-O-18; 2007-O-06.

¹⁰ N.D.C.C. § 44-04-18. See also N.D.A.G. 2023-O-09; 2023-O-08.

¹¹ N.D.C.C. § 44-04-18(4). See also N.D.A.G. 2023-O-09; 2023-O-08; 2023-O-07.

¹² N.D.C.C. § 44-04-21.1(1). See also N.D.A.G. 2024-O-02; 2015-O-14; 2007-O-06.

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