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 requested interview transcripts, search videos and photos, and medical examination records from a criminal investigation involving five minor children. McHenry County State's Attorney Joshua Frey provided some records and denied others. His April 10, 2023, response came almost nine months after Yost's July 27, 2022, request.

The Attorney General reached two conclusions. The denial itself did not violate North Dakota's open records law: Frey's written response identified each requested record and specified whether an exemption applied or his office did not possess it. The opinion cites protections for active criminal investigative information, juvenile law-enforcement records, child-abuse reports, and identifying information about child victims. Frey said the county matter was "intertwined" with an ongoing federal investigation.

The response time was a separate violation. The opinion says an ordinary delay is usually measured in "a few hours or a few days rather than several days or weeks," while reasonableness depends on the facts. Under the circumstances here, nearly nine months was unreasonable. Yost had received the records required to be released by the time the opinion issued, so the AG ordered no further corrective measure.

What this means for you

If you request investigative records

The AG examined both the reason for withholding records and the time taken to respond. A denial must describe its legal authority. In this case, Frey's response matched each requested record to an exemption or said the office did not possess it. The opinion does not say that every record from a completed state prosecution is open or that every record connected to one is exempt.

If you handle a records request for a North Dakota public entity

Identify the requested records and the legal basis for withholding each one. Respond within a reasonable time even when records may be exempt: the AG upheld Frey's denial but found his delay unreasonable. The opinion describes no further corrective step in this case because Yost had received the records required to be released.

Common questions

Did the Attorney General order the State's Attorney to release more records?

No. The opinion says Yost had already received the records required to be released and directs no further corrective action.

Why did the AG uphold the denial?

The written response identified each requested record and specified an exemption or said the office did not possess it. The opinion names N.D.C.C. §§ 44-04-18.7, 27-20.2-23, 50-25.1-11, and 12.1-35-03 as the grounds for withholding the records at issue.

Did the ongoing federal investigation matter?

Yes. Frey said the county matter was "intertwined" with an ongoing federal criminal investigation and treated the denied records as active criminal intelligence or investigative information. The AG accepted the denial in the circumstances presented.

How quickly must an agency respond?

The opinion says an entity must provide requested public records or explain a denial within a reasonable time. It quotes earlier AG opinions that ordinary delays are usually a few hours or days, while the facts control reasonableness. The AG found this almost nine-month delay unreasonable.

Was the delay excused because some records were exempt?

No. The AG upheld the denial of protected records and separately found the delayed response unreasonable.

Background and statutory framework

North Dakota's open records law generally opens public entity records unless law specifically provides otherwise. N.D.C.C. § 44-04-18(7) requires a denial to describe its legal authority. The opinion identifies an exception for active criminal intelligence and investigative information under § 44-04-18.7(1), restrictions on a child's law-enforcement and correctional records under § 27-20.2-23(1), confidentiality for child-abuse or neglect reports under § 50-25.1-11, and protection of child-victim information under § 12.1-35-03.

The response-time rule is independent of the grounds for denial. The opinion cites N.D.C.C. § 44-04-18(2) through prior AG opinions and says an entity must furnish a copy or explain why records are not provided within a reasonable time. It found this response unreasonable under the circumstances, although no more records needed to be released.

Citations from the opinion

• N.D.C.C. §§ 44-04-18(1), (2), and (7); 44-04-18.7(1)
• N.D.C.C. §§ 27-20.2-23(1), 50-25.1-11, and 12.1-35-03
• N.D.A.G. 2006-O-08, 2004-O-07, 2002-O-06, and 98-O-03

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

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.¹ On September 22, 2022, Mr. Yost wrote to this office that he had not received any documentation from Attorney Frey.² 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.³ On November 18, 2022, Mr. Yost again notified this office that he had not yet received communication or the requested records from Attorney Frey.⁴ 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.⁵

¹ Letter from Dale G. Yost, Inmate # 39654, to Joshua E. Frey, State's Att'y, McHenry Cnty. State's Att'y's Off. (Jul. 27, 2022). ² Letter from Dale G. Yost, Inmate # 39654, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Sept. 22, 2022). ³ Letter from Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen., to Dale G. Yost, Inmate # 39654 (Oct. 28, 2022). ⁴ Letter from Dale G. Yost, Inmate # 39654, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Nov. 18, 2022). ⁵ Letter from Dale G. Yost, Inmate # 39654, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Dec. 14, 2022); Letter from Dale G. Yost, Inmate # 39654, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Jan. 30, 2023).

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.⁶ On April 10, 2023, Attorney Frey responded to Mr. Yost's requests providing some of the requested records but denying others.⁷ 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."⁸ 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.⁹

ISSUES

1. 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.

2. 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.¹⁰ A denial of a records request "must describe the legal authority for the denial."¹¹ 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.¹²

⁶ Letter from Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen., to Mr. Joshua Frey, McHenry Cnty. State's Att'y (Feb. 14, 2023). ⁷ Letter from Joshua E. Frey, McHenry Cnty. State's Att'y, State's Att'y's Off., to Dale Yost, Inmate # 39654 (Apr. 10, 2023). ⁸ Letter from Joshua E. Frey, McHenry Cnty. State's Att'y, State's Att'y's Off., to Dale Yost, Inmate # 39654 (Apr. 10, 2023). ⁹ Id. ¹⁰ N.D.C.C. § 44-04-18(1). ¹¹ N.D.C.C. § 44-04-18(7). ¹² Letter from Dale G. Yost, Inmate # 39654, to Joshua E. Frey, State's Att'y, States Att'y's Off. (July 27, 2022).

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 12.1-35-03.¹³ 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.¹⁴ 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.¹⁵ 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."¹⁶ 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. § 50-25.1-11.¹⁷ Nor may information about child victims appear in a public record, and such information must remain sealed to protect the child.¹⁸

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."¹⁹ 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."²⁰ "Whether records have been provided within a reasonable time will depend on the facts of a given situation."²¹

Mr. Yost's first request to the McHenry County State's Attorney for records was received on July 27, 2022.²² This office attempted to facilitate a resolution from September 22, 2022, to January

¹³ Letter from Joshua E. Frey, McHenry Cnty. State's Att'y, State's Att'y's Off., to Dale Yost, Inmate # 39654 (Apr. 10, 2023). ¹⁴ N.D.C.C. § 44-04-18.7(1). ¹⁵ Letter from Joshua E. Frey, McHenry Cnty. State's Att'y, State's Att'y's Off., to Dale G. Yost, Inmate # 39654, n.1 (Apr. 10, 2023). ¹⁶ N.D.C.C. § 27-20.2-23(1). ¹⁷ N.D.C.C. § 50-25.1-11. ¹⁸ N.D.C.C. § 12.1-35-03. ¹⁹ N.D.A.G. 2006-O-08, citing N.D.C.C. § 44-04-18(2). ²⁰ Id., citing N.D.A.G. 2004-O-07; N.D.A.G. 2002-O-06. ²¹ Id., citing N.D.A.G. 98-O-03. ²² Letter from Dale G. Yost, Inmate # 39654, to Joshua E. Frey, State's Att'y, McHenry Cnty. State's Att'y's Off. (Jul. 27, 2022).

30, 2023.²³ Attorney Frey responded on April 10, 2023,²⁴ 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

1. 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.

2. 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

²³ Letter from Dale Yost, Inmate # 39564, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Sept. 22, 2022); Letter from Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen., to Dale G. Yost, Inmate # 39654, cc: Joshua Frey, McHenry Cnty. State's Att'y (Oct. 28, 2022); Letter from Dale G. Yost, Inmate # 39654, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Nov. 18, 2022); Letter from Dale G. Yost, Inmate # 39654, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Dec. 14, 2022); Letter from Dale G. Yost, Inmate # 39654, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Jan. 30, 2023). ²⁴ Letter from Joshua E. Frey, McHenry Cnty. State's Att'y, State's Att'y's Off., to Dale Yost, Inmate # 39654 (Apr. 10, 2023).