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?

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

The opinion holds that the open records law requires the entity only to (1) inform the requester within a reasonable time that the records are not in its possession, and (2) where applicable, identify the separate public entity that holds them. The Morton County Auditor's voluntary outreach to MCHA to obtain and forward the minutes was characterized as going beyond what the statute required.

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

The opinion treats a housing authority as a separate public entity from the county that appoints its board, citing N.D.C.C. § 23-11-02 (housing authorities are "public bodies corporate and politic"). A records request directed to the county does not reach records held by the separate entity. The county is not required to search for or obtain them.

If you administer a housing authority or special district

The opinion confirms the separate-entity status of housing authorities under N.D.C.C. § 23-11-02. Each entity is responsible only for the records it possesses or has custody of.

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

• Landing page: https://attorneygeneral.nd.gov/morton-county-did-not-violate-north-dakotas-open-records-law-when-the-county-auditor-within-a-reasonable-time-informed-the-requester-that-the-requested-records-were-not-in-the-county/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2026/02/2026-O-06.pdf

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