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 cover state government as a journalist: Build a routine for grabbing meeting recordings within the retention window. For the State Investment Board, that's six months. For other state and local entities, it varies. The state Records Management portal lists retention schedules; check the relevant agency before you wait too long. After deletion, the minutes are usually all you'll get.
If you are a state agency records officer: Have a written, published retention schedule. Keep a disposal log. When a requester asks for a record that's been deleted, your response should reference the specific schedule, the deletion date, and any alternative record (like minutes). RIO's response was held up here as a model: same-day reply, explanation, alternative record provided.
If you sit on a public board whose meetings are recorded: Six months is short for some kinds of accountability journalism (e.g., looking back at a board's reasoning after market movement). If the board cares about long-term transparency, it can ask the agency to extend the retention schedule. The schedule is administrative, not statutory; the agency has discretion to keep recordings longer.
If you are filing a records request and the agency says "we no longer have it": Verify two things: that the agency actually has a published retention schedule covering the record class, and that the disposal date is documented. If either is missing, the deletion may not have been "proper" within the meaning of the open-records framework, and the answer might come out differently.
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