ND 2026-O-06 2026-02-27

If I ask a North Dakota county for records and the records are actually held by a separate housing authority that the county appoints board members for, does the county have to track down those records for me?

Short answer: No. North Dakota's open records law only requires a public entity to provide records that it actually possesses or has custody of. A housing authority is a separate public entity under N.D.C.C. § 23-11-02, even when the county appoints its board. The county complies with the law by promptly informing the requester that the records are not in the county's possession and pointing them to the right entity. Anything more, like the Morton County Auditor voluntarily reaching out to the housing authority and forwarding the minutes, is above and beyond what the law requires.

Disclaimer: This is an official North Dakota Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed North Dakota attorney for advice on your specific situation.

Plain-English summary

Karen Jordan asked the Morton County Auditor for the meeting minutes of the Morton County Housing Authority (MCHA). The Auditor responded the next day that the MCHA is a separate entity, gave Jordan its contact information, and (going beyond what the law required) voluntarily contacted MCHA, obtained the minutes, and sent them on. Jordan still asked the AG to opine on whether the County had violated North Dakota's open records law.

The AG concluded: no violation. Public entities have to provide access only to records they possess or have custody of. They are not required to track down records held by other entities, even related ones. A housing authority is a separate public body under N.D.C.C. § 23-11-02, and the relationship between the county commission (which appoints MCHA board members) and the housing authority does not make the county the custodian of MCHA's records. The Auditor's voluntary outreach to MCHA was a courtesy, not a legal duty.

What this means for you

If you are a county auditor or records officer in North Dakota

When a request comes in for records held by a separate body (housing authority, fire district, hospital district, soil conservation district, etc.), do two things and you are compliant:

Promptly inform the requester that the records are not in the county's possession.
Point the requester to the right public entity (the housing authority's contact information, the fire district's clerk, etc.).

You do not have to call the other entity, ask for the records, or forward them. The Morton County Auditor went above and beyond, which is helpful but not required.

If you are a citizen requesting records about a special district or authority

Be aware that "the county" and "a special district appointed by the county" are usually separate public entities. If you want the housing authority's minutes, send your request to the housing authority. If you want the soil and water conservation district's records, send your request to that district. The county can decline to search or forward, citing this opinion.

When you are not sure which entity holds what, look at the enabling statute. For housing authorities in North Dakota, N.D.C.C. § 23-11-02 makes them separate "public bodies corporate and politic." For soil and water conservation districts, the chapter 4.1-20 framework. For fire districts, chapter 18-11. Each statute clarifies the entity's separate status.

If you administer a housing authority or special district

Make sure your contact information is publicly available. When citizens have to be redirected to you because they sent a request to the wrong entity, you want to make it easy to receive the redirected request. Maintain a records-request inbox and post the policy on your website.

Common questions

Q: How quickly does a North Dakota public entity have to respond to a records request?
A: "Within a reasonable time," per the statute. There is no fixed deadline, but the AG has consistently treated quick same-day or next-day responses as reasonable.

Q: What if a public entity says it does not have the records but I think it does?
A: You can request a formal opinion from the AG under N.D.C.C. § 44-04-21.1. The AG will gather facts from both sides and issue an opinion. If the AG finds the records exist and are within the public entity's possession, the AG can find a violation.

Q: Why is a housing authority "separate"?
A: Section 23-11-02 establishes housing authorities as "public bodies corporate and politic" with their own legal identity. Even when a county or city is involved in setting up the authority, the authority is its own legal entity, with its own records, finances, and board.

Q: Does this rule mean I have to send the same request to multiple entities?
A: Yes, if you are seeking records from multiple separate entities. There is no clearinghouse; each public entity is responsible only for its own records.

Background and statutory framework

North Dakota's open records law starts from the principle that "all records of a public entity are public records, open and accessible." Section 44-04-17.1(16) defines a "record" as recorded information of various types. Section 44-04-18 obligates the public entity to produce records "in its possession or custody." Section 44-04-18(4) explicitly says no entity has to create new records or compile information that does not already exist.

A long line of AG opinions confirms that each public entity is responsible only for its own records (cited in this opinion: 2010-O-02, 2005-L-13, 2004-O-05, 2024-O-07, 2024-O-08, 2019-O-13, 2014-O-22). When the entity does not have the requested records, it must "within a reasonable time" inform the requester (see 2017-O-06, 2015-O-17, 2010-O-02, 2008-O-06).

The opinion also confirms that the appointment relationship (county commission appoints housing authority board) does not create a custodial relationship over records. Each entity holds its own records.

Citations and references

Statutes:
- N.D.C.C. § 44-04-17.1 (definitions)
- N.D.C.C. § 44-04-18 (open records)
- N.D.C.C. § 44-04-21.1 (AG opinion process)
- N.D.C.C. § 23-11-02 (housing authorities)

Prior AG opinions:
- N.D.A.G. 2026-O-01; 2024-O-07; 2024-O-08; 2019-O-13; 2017-O-06; 2015-O-17; 2014-O-22; 2010-O-02; 2008-O-06; 2005-L-13; 2004-O-05

Source

Original opinion text

STATE OF NORTH DAKOTA
OFFICE OF ATTORNEY GENERAL
Drew H. Wrigley, ATTORNEY GENERAL

OPEN RECORDS AND MEETINGS OPINION 2026-O-06

DATE ISSUED: February 27, 2026
ISSUED TO: Morton County

CITIZEN'S REQUEST FOR OPINION

Karen Jordan requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether Morton County violated N.D.C.C. § 44-04-18 by failing or refusing to provide records.

FACTS PRESENTED

On June 28, 2023, Karen Jordan emailed the Morton County Auditor, requesting the meeting minutes of the Morton County Housing Authority ("MCHA"). The Auditor responded the next day that the MCHA is a separate entity and provided Ms. Jordan with its contact information. The Auditor then voluntarily contacted the MCHA, obtained the requested minutes, and provided them to Ms. Jordan.

ISSUE

Whether Morton County's response to a request for records complied with N.D.C.C. § 44-04-18.

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." Under the open records law, a public entity is required to provide access only to records in its possession or custody. A public entity is not required to create records, compile information that does not already exist, or obtain records not in its possession. Each office, department, or agency within a political subdivision is responsible only for the records in its possession and has no obligation to locate or provide records held by another agency, even if both are part of the same political subdivision. When a public entity does not have the requested records, it must, within a reasonable time, inform the requester that the records are not in its possession or do not exist.

Morton County complied with the open records law when the Auditor, within a reasonable time, informed Ms. Jordan that the records were not in the County's possession. Although the County Commission appoints members to the MCHA board, that relationship does not make the County the custodian of MCHA's records. Because the MCHA is a separate public entity, the open records law does not require the County to search for, obtain, or provide records maintained by that entity. The Auditor's voluntary efforts to obtain the minutes went beyond what the law requires.

CONCLUSION

It is my opinion that Morton County's response was in compliance with N.D.C.C. § 44-04-18.

Drew H. Wrigley
Attorney General

cc: Karen Jordan