Does a North Dakota school district violate the open records law by giving a requester redacted documents and explaining the redactions verbally instead of in writing?
Plain-English summary
A reporter asked the Williston Basin School District for records about a teacher, an alleged inappropriate teacher-student relationship, and two terminated paraprofessionals. The district provided the records the next day, with redactions. When the reporter called to ask about the redactions, the superintendent verbally explained that FERPA and an ongoing Title IX investigation required them. The superintendent later wrote a letter and provided guidance from the U.S. Department of Education's Office for Civil Rights.
The reporter asked the AG whether the verbal explanation, with the written explanation arriving days later, satisfied the open records law's requirement to "describe the legal authority for the denial."
The AG said yes. The district substantially complied. Three points:
- The records came in a reasonable time. Provided the day after the request.
- The legal authority for redactions was provided verbally on the day of pickup. The statute requires the basis to be communicated, but does not specify the form unless the requester asks for writing.
- The requester never asked for the legal authority to be in writing. Section 44-04-18(7) puts a written-authority requirement on the public entity only if requested. Without that request, the verbal explanation was enough.
The AG noted it "would have been better practice" for the district to provide the legal authority at the time of pickup, but found no statutory violation.
What this means for you
If you are a school records officer or superintendent
Best practice: provide the legal authority for any redaction in writing at the time of release, not after a follow-up phone call. The statute does not require this, but a written explanation at the moment of release prevents disputes. Use a stamped or letterhead form citing the specific statutes (FERPA 20 U.S.C. § 1232g, Title IX 20 U.S.C. § 1681, etc.) for each category of redaction.
That said, this opinion gives you a defense if the explanation was verbal and the requester never asked for writing. Document your verbal explanation: who said what, when. The AG opinion turned partly on the school's documentation of the superintendent's call with Mr. Simon.
If you are a journalist or records requester
Two things to know. First, you should affirmatively request that any denial or redaction be explained in writing. Section 44-04-18(7) requires a written explanation only "if requested." Second, "substantial compliance" is the standard. A district that explains redactions verbally and follows up in writing within a few days will likely be found compliant, even if not strictly perfect.
If you want bullet-proof documentation, send your request in writing and ask the entity to put any denial or redaction explanation in writing too. That triggers § 44-04-18(7)'s mandatory written-explanation requirement.
If you are a parent of a student involved in a Title IX investigation
This opinion is reassuring on the privacy front. FERPA and Title IX confidentiality protections do effectively redact your child's identifying information from records released to outside requesters. The school is required to redact, not just permitted to. The AG cited the Department of Education's Office for Civil Rights guidance as the operative federal source.
If you are a Title IX coordinator
Coordinate with the records officer on a redaction protocol. The interaction between FERPA, Title IX confidentiality regulations, and state open records can get complex. Standard protocol: identify the student, witnesses, and any identifying details; redact those; release the rest with a clear explanation of the legal basis for each redaction category.
Common questions
Q: Does FERPA require redaction of student identifying information?
A: FERPA prohibits disclosure of personally identifiable information from education records without consent, with limited exceptions. When a school releases records under state open records laws, FERPA-protected information must be redacted. The school does not get a choice.
Q: What about Title IX investigations specifically?
A: Title IX has its own confidentiality regulations, especially around victim and witness identification. The Department of Education's Office for Civil Rights publishes guidance that schools should follow, and this guidance is incorporated into the school's redaction obligations.
Q: What is "substantial compliance"?
A: The functional standard the AG applies in evaluating open records compliance. Even if a public entity falls short on a procedural detail, if the substance of the law is satisfied, no violation occurred. Here, the substance was: timely production, identification of legal authority, written follow-up.
Q: How fast must records be produced?
A: Section 44-04-18(8) requires production "within a reasonable time." There is no fixed deadline. The AG noted that production the day after the request was reasonable. The initial estimate of "two weeks" by the HR director was not a violation; what mattered was the actual response time, not the estimate.
Q: Can I demand records identifying a teacher accused of misconduct?
A: You can request them, but expect heavy redaction if a Title IX investigation is pending. The teacher's name may be releasable; the student's name, witness statements, and investigation details typically are not.
Q: What if the redaction exemption is bogus or overbroad?
A: You can challenge it. File a request for an AG opinion under § 44-04-21.1. The AG will analyze whether the cited federal or state law actually authorizes the redaction. If the AG finds an improper redaction, the public entity has seven days to remedy.
Q: Does verbal notification of the legal basis count for denials of records, or only for redactions?
A: The opinion discusses redactions, but the same statutory language (§ 44-04-18(7)) governs both. A denial or redaction must "describe the legal authority," with written form required only "if requested." The same logic applies.
Background and statutory framework
North Dakota's open records law works on a presumption of disclosure with narrow exceptions. § 44-04-18(1). When a public entity withholds or redacts something, it must "describe the legal authority for the denial." § 44-04-18(7). The entity must put that explanation in writing only "if requested" by the requester.
Federal confidentiality requirements get incorporated through § 44-04-17.1(8). FERPA (20 U.S.C. § 1232g) protects education records; Title IX (20 U.S.C. § 1681 et seq.) regulates sex-discrimination investigations and has its own confidentiality requirements implemented through the Department of Education's regulations.
The AG opinion relies on documentation from the school district describing what the superintendent told Mr. Simon. The opinion notes that AG open-records opinions are based "on the facts given by the public entity" under § 44-04-21.1(1). This rule biases the AG's analysis toward the public entity's account of the facts when there is a dispute.
Citations and references
Statutes:
- N.D.C.C. § 44-04-18 (Open records law)
- 20 U.S.C. § 1232g (FERPA)
- 20 U.S.C. § 1681 (Title IX)
Source
- Landing page: https://attorneygeneral.nd.gov/the-williston-basin-school-district-no-7-substantially-complied-with-n-d-c-c-%c2%a7-44-04-18-by-providing-the-requester-with-the-legal-authority-for-redactions-verbally-on-the-day-he-picked-up-the-r/
- Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2026/01/2026-O-02.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
2026-O-02
DATE ISSUED: January 21, 2026
ISSUED TO: Williston Basin School District No. 7
CITIZEN'S REQUEST FOR OPINION
Tom Simon requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether
Williston Basin School District No. 7 failed to provide him with the legal authority for redactions
on open records in violation of N.D.C.C. § 44-04-18.
FACTS PRESENTED
On May 31, 2023, Tom Simon entered the main office of Williston Basin School District No. 7
(District) and requested all records related to a teacher, the teacher's alleged inappropriate
relationship with a student, and two paraprofessionals who were terminated by the District. The
District's Human Resources Director "informed Mr. Simon that she could not immediately 'on the
spot' provide him with those records due to . . . confidentiality issues and the significant number
of pending open records requests that had come in before his," though the District ultimately
provided the requested records the next day on June 1, 2023.
Mr. Simon picked up the records in person and discovered they contained redactions related to the
alleged incident involving the teacher and the student. Mr. Simon then "immediately called" the
District's superintendent and spoke with him about the redactions. During the phone call, the
superintendent "was very clear with Mr. Simon that he could not release any records or information
protected under FERPA and the pending Title IX investigation. Any information that could
reveal the identity of the student and/or compromise or release information from an ongoing Title
IX investigation had to be redacted."
On June 5, 2023, the superintendent wrote Mr. Simon and reiterated that the redacted records were
protected under FERPA and Title IX. The superintendent "also provided Mr. Simon with
guidance from the U.S. Department of Education, Office for Civil Rights . . . providing a thorough
explanation of the confidentiality of Title IX records that implicate FERPA."
ISSUE
Whether the District substantially complied with N.D.C.C. § 44-04-18 when it provided partially
redacted records in response to an open records request, verbally informed the requester of the
legal authority for the redactions, and later provided written references to the legal authority for
the redactions.
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." A denial of access to
requested records "must describe the legal authority for the denial . . . and must be in writing if
requested." This office must base its open records opinions on the facts provided by the public
entity involved in the matter.
According to the District, during a phone call soon after Mr. Simon received the records, the
superintendent told Mr. Simon the legal authority for the redactions. The superintendent "was very
clear with Mr. Simon that he could not release any records or information protected under FERPA
and the pending Title IX investigation. Any information that could reveal the identity of the student
and/or compromise or release information from an ongoing Title IX investigation had to be
redacted." There is no evidence that Mr. Simon made a request for the District to put the legal
authority to redact the records in writing, nevertheless the superintendent provided the authority
in writing along with a resource from the U.S. Department of Education that provided "a thorough
explanation of the confidentiality of Title IX records that implicate FERPA." While it would
have been better practice for the District to provide the legal authority for the redactions at the time
the records were picked up, there is no temporal requirement in statute for when the legal authority
for redactions must be provided in such instances. The District complied with the statute when
the superintendent provided the legal authority on the phone immediately after Mr. Simon received
the records. It is therefore my opinion that the District substantially complied with N.D.C.C. §
44-04-18(7) by verbally telling Mr. Simon the legal authority for the redactions. Because Mr.
Simon never made a request for the District to put the legal authority in writing, the District had
no obligation under N.D.C.C. § 44-04-18(7) to do so. Nevertheless, the District chose to provide
written notice of the relevant legal authority, thereby exceeding their notification requirements.
CONCLUSION
The District substantially complied with N.D.C.C. § 44-04-18 by providing the requester with the
legal authority for the redactions verbally on the day he picked up the records.
Drew H. Wrigley
Attorney General
cc: Tom Simon