Can a North Dakota state's attorney refuse to release records of a child-sexual-abuse investigation to the convicted defendant, and how long can the office take to respond?
Plain-English summary
Dale Yost, an inmate convicted of crimes against minor children, asked the McHenry County State's Attorney for transcripts, photos, videos, and medical records from the investigation. The State's Attorney took almost nine months to respond and then provided some records while denying others on multiple grounds: the materials were active criminal investigation information (because the McHenry County matter was intertwined with an ongoing federal investigation), juvenile law-enforcement records, child-abuse reports, and records containing child-victim identifying information.
Yost asked the AG whether the denial was lawful and whether the nine-month delay was reasonable.
The AG split the answer:
- The substantive denial was lawful. Each cited exemption is a valid statutory basis for withholding records, and the State's Attorney identified specifically which records fell under which exemption. Active criminal investigation information (§ 44-04-18.7), juvenile records (§ 27-20.2-23), child-abuse-report confidentiality (§ 50-25.1-11 / § 12.1-35-03) all support nondisclosure.
- The nine-month delay was not reasonable. Section 44-04-18 requires response "within a reasonable time," which prior AG opinions describe as a few hours or days, not several weeks or months. Nine months crossed that line.
What this means for you
If you are a North Dakota state's attorney handling records requests
You have multiple statutory grounds to deny records related to ongoing or recently concluded criminal cases involving minors. The opinion lays them out:
- Active criminal investigation information under § 44-04-18.7 covers materials connected to ongoing investigations, including investigations intertwined with parallel federal cases.
- Juvenile law-enforcement records under § 27-20.2-23 are not open to public inspection.
- Child abuse and neglect reports under N.D.C.C. ch. 50-25.1 and § 12.1-35-03 are confidential.
- Child-victim identifying information must be sealed and not made public.
But denial alone is not enough. You must:
1. Identify the specific records being denied.
2. Cite the specific statutory subsection authorizing the denial.
3. Respond within a reasonable time, ordinarily measured in hours or days, not months.
The McHenry County response was substantively correct but procedurally late. Even when your denial is going to be sustained, you should issue it promptly. A timely "denied for the following statutory reasons" is much better practice than a delayed everything.
If you are an inmate seeking your case records
This opinion confirms that several categories of evidence in your file are likely to remain confidential, even after conviction:
- Child witness/victim identifying information.
- Child abuse and neglect reports.
- Juvenile law-enforcement records.
Your standard route to obtain these materials is post-conviction discovery through your attorney, not an open-records request to the State's Attorney. Most of what passes through criminal discovery is exempt from public-records release. If you believe your defense did not get certain materials in discovery, the proper remedy is a post-conviction motion, not a § 44-04-18 request.
If you are a defense attorney or post-conviction counsel
Use this opinion when responding to a client's question about records access. Confirm what your client may obtain: trial exhibits and transcripts already on the public record; not the State's Attorney's confidential investigative file. The post-conviction discovery rules in your case (Rule 15, post-conviction relief proceedings) are the proper avenue.
If you are a victim advocate or work with child witnesses
The opinion is a useful citation for the principle that child-victim identifying information stays confidential even when records are otherwise releasable. The four-statute layered protection (§ 27-20.2-23, § 50-25.1-11, § 12.1-35-03, plus general criminal-investigation exemption § 44-04-18.7) is robust.
Common questions
Q: What is "active criminal investigation information"?
A: Defined by N.D.C.C. § 44-04-18.7. It includes materials gathered in connection with an ongoing investigation. The opinion treats a state criminal matter "intertwined" with a federal criminal investigation as still active for purposes of this exemption, even after the state-level conviction.
Q: When does an investigation stop being "active"?
A: The statute does not give a bright-line rule. Generally, records become non-active once the investigation is closed and the related prosecutions are complete (including appeals and post-conviction proceedings). Where there is a parallel federal investigation, the state matter may remain "active" until the federal piece resolves.
Q: What is the timeline for response under § 44-04-18?
A: "Reasonable time," which the AG's prior opinions (98-O-03, 2002-O-06, 2004-O-07, 2006-O-08) describe as a few hours or days in ordinary cases, weeks only with cause. Nine months is well past reasonable.
Q: What recourse does a requester have if a State's Attorney delays?
A: File a request for an AG opinion under § 44-04-21.1. The AG can find a violation of the reasonable-time requirement even if the records were ultimately released or the substantive denial was sustained. The AG can require the entity to respond more promptly going forward.
Q: Can a child-victim identifying-information redaction apply to all materials in a case?
A: Effectively yes, where the materials inherently identify the victim or contain reports about the victim. But blanket denials based on this exemption need to be specific about which records and which information are protected. The AG opinion praised the McHenry County State's Attorney for identifying each requested record and matching it to a specific exemption.
Q: Why did this take 18 months to resolve?
A: The opinion involved coordination across the inmate, the State's Attorney's office, and the AG's office, plus the underlying records request was complex. The AG note describes correspondence from July 2022 through January 2023, then the State's Attorney response in April 2023, and the formal opinion not issued until December 2025. The slow pacing reflects both the complexity and (in the AG's findings) the State's Attorney's slow response.
Q: What does "Mr. Yost has now received the records required to be released" mean for compliance?
A: It means the records that were not exempt have been disclosed. The substantive issue is moot. The AG's finding that the timeline was unreasonable remains a violation but no further corrective action is needed.
Background and statutory framework
North Dakota's open records law has a layered exemption system for criminal-justice and child-protection records. The active-criminal-investigation exemption in § 44-04-18.7 is broad and applies as long as the investigation is genuinely active. The juvenile law-enforcement records exemption in § 27-20.2-23 closes most juvenile-justice records to public inspection. The child-abuse-report regime in N.D.C.C. ch. 50-25.1 and § 12.1-35-03 keeps reports confidential.
Together, these exemptions cover most of what would be in a State's Attorney's file on a child-victim sexual-abuse case. Because the categories overlap (e.g., a single document might be a child-abuse report, contain child-victim identifying information, and be active criminal investigation material), prosecutors typically cite multiple authorities.
The reasonable-time requirement in § 44-04-18(2) and (8) is the procedural backstop. Even when the substance of a denial is correct, an unreasonable delay independently violates the law. The AG's prior opinions establish a sliding scale: a few hours to a few days for ordinary requests, weeks only with cause, several months presumptively unreasonable.
Citations and references
Statutes:
- N.D.C.C. § 44-04-18 (Open records)
- N.D.C.C. § 44-04-18.7 (Active criminal investigation exemption)
- N.D.C.C. § 27-20.2-23 (Juvenile records)
- N.D.C.C. § 50-25.1-11 (Child abuse report confidentiality)
- N.D.C.C. § 12.1-35-03 (Child witness/victim identifying information)
Prior AG opinions cited:
- N.D.A.G. 98-O-03, 2002-O-06, 2004-O-07, 2006-O-08: reasonable-time framework
Source
- Landing page: https://attorneygeneral.nd.gov/the-north-dakota-attorney-general-issued-an-opinion-to-the-mchenry-county-states-attorney/
- Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2025/12/2025-O-25.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-25
DATE ISSUED: December 23, 2025
ISSUED TO: McHenry County State's Attorney
CITIZEN'S REQUEST FOR OPINION
Dale Yost requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the
McHenry County State's Attorney violated N.D.C.C. § 44-04-18 by denying a request for records
pertaining to a criminal matter for which Mr. Yost was convicted and by failing to issue a denial
for the records for almost nine months.
FACTS PRESENTED
On July 27, 2022, Dale Yost requested of the McHenry County State's Attorney Joshua Frey
(Attorney Frey), various transcripts from interviews pertaining to the investigations into Mr.
Yost's criminal proceedings, videos and photos of items confiscated as part of the investigations,
and "[a]ll medical reports and/or records of the examination of sexual abuse" of five minor
children. On September 22, 2022, Mr. Yost wrote to this office that he had not received any
documentation from Attorney Frey. After having spoken with Attorney Frey via telephone, this
office responded to Mr. Yost on October 28, 2022, indicating that it was this office's understanding
that Attorney Frey would be providing a response to Mr. Yost's request. On November 18, 2022,
Mr. Yost again notified this office that he had not yet received communication or the requested
records from Attorney Frey. Follow-up letters dated December 14, 2022, and January 30, 2023,
from Mr. Yost to this office indicated that he was still awaiting a response from Attorney Frey.
On February 14, 2023, this office contacted Attorney Frey to ask that he provide a summary and
interpretation of Mr. Yost's requests for records to the McHenry County State's Attorney's office.
On April 10, 2023, Attorney Frey responded to Mr. Yost's requests providing some of the
requested records but denying others. Except for the records attached for Mr. Yost's review, the
response indicated that "all documents in the State's possession have been previously provided to
you through your attorneys in the related criminal case matters," and "all records in these [sic]
office's possession related to your requests are active criminal investigation information and are
confidential pursuant to N.D.C.C. § 44-04-18.7." Attorney Frey cited N.D.C.C. § 44-04-18.7
(regarding active criminal investigations), §§ 27-20.2-23 and 50-25.1-11 (relating to child
protection matters and reports of child abuse or neglect), and § 12.1-35-03 (as containing
confidential identifying information regarding child witnesses and victims of crimes) as the legal
basis for denying the remainder of the requested records.
ISSUES
-
Whether the McHenry County State's Attorney violated N.D.C.C. § 44-04-18 by denying
a request for records and relying on N.D.C.C. § 44-04-18.7, which protects criminal
investigative information, and the open records exemptions in N.D.C.C. §§ 27-20.2-23,
50-25.1-11, and 12.1-35-03 for the denial. -
Whether the McHenry County State's Attorney's response to Mr. Yost's requests was
timely.
ANALYSIS
Issue One
All records of a public entity are public records except as otherwise specifically provided by law.
A denial of a records request "must describe the legal authority for the denial." Mr. Yost
requested the following records from Attorney Frey: transcripts of several interviews with minor
children; video footage of a police search pertaining to the abuse of minor children and
photographs of items confiscated during that search; and medical reports and/or records of the
examinations relating to the sexual abuse of minor children.
Attorney Frey's denial of Mr. Yost's request relied upon N.D.C.C. § 44-04-18.7, and more
specifically on N.D.C.C. §§ 27-20.2-23, 50-25.1-11, and 12.1-35-03. N.D.C.C. § 44-04-18.7
states that "[a]ctive criminal intelligence information and active criminal investigative information
are not subject to" North Dakota's open records requirements. In citing to N.D.C.C. § 44-04-
18.7, Attorney Frey indicated that the McHenry County matter involving Mr. Yost was
"intertwined" with an ongoing federal criminal investigation, and therefore the denied records of
the McHenry County matter constituted active criminal intelligence or investigative information.
Furthermore, under N.D.C.C. § 27-20.2-23, "the law enforcement and correctional facility records
and files of a child . . . are not open to public inspection." Reports of child abuse or neglect as
defined under N.D.C.C. ch. 50-25.1 are confidential and, under N.D.C.C. § 12.1-35-03, may not
be made available to anyone except as provided in N.D.C.C. § 50-25.1-11. Nor may information
about child victims appear in a public record, and such information must remain sealed to protect
the child.
Attorney Frey's written response to Mr. Yost identified each requested record and indicated
specifically whether the denial to produce each record related to one of the cited exemptions, or
whether his office simply was not in possession of the requested document. Based on this, it is my
opinion that the McHenry County State's Attorney's Office's denial of records did not violate
N.D.C.C. § 44-04-18.
Issue Two
"Upon a request for a copy of specific public records, an entity must, within a reasonable time,
furnish the requester one copy of the records requested or explain why the records are not being
provided." Delays in response can be considered reasonable under certain circumstances, but
"the delay permitted in ordinary situations will usually be measured in a few hours or a few days
rather than several days or weeks." "Whether records have been provided within a reasonable
time will depend on the facts of a given situation."
Mr. Yost's first request to the McHenry County State's Attorney for records was received on July
27, 2022. This office attempted to facilitate a resolution from September 22, 2022, to January
30, 2023. Attorney Frey responded on April 10, 2023, almost nine months after Mr. Yost made
his initial request. It is my opinion that, under the circumstances present in this instance, the delay
in providing a response was unreasonable.
CONCLUSIONS
-
The McHenry County State's Attorney did not violate N.D.C.C. § 44-04-18 by refusing to
release records that related to criminal investigative information under N.D.C.C. §
44-04-18.7 or were protected from disclosure pursuant to the open records exemptions in
N.D.C.C. §§ 27-20.2-23, 50-25.1-11, and 12.1-35-03. -
The McHenry County State's Attorney did not provide the requested records within a
reasonable time.
STEPS NEEDED TO REMEDY VIOLATION
Mr. Yost has now received the records required to be released. Therefore, there are no further
corrective measures to be taken by the McHenry County State's Attorney's Office.
Drew H. Wrigley
Attorney General
cc: Dale G. Yost, Inmate # 39654