When a North Dakota newspaper asks for the police report and body-camera footage from a state legislator's DUI arrest, can the police department withhold the records as 'active' even though the legislator has been arrested and the case is moving through the courts?

Plain-English summary

A Grand Forks Herald reporter requested a police report about a state legislator's DUI arrest on May 10, 2024. The Grand Forks Police Department supplied an initial report with limited information but withheld the detailed report. Ten days later, the Herald's managing editor requested body-camera footage; the department denied that request under N.D.C.C. § 44-04-18.7, the exemption for active criminal investigative information. The department said prosecution had not yet been secured because the case was pending in court.

Publisher Korrie Wenzel argued that the investigation was no longer active once the legislator had been arrested and prosecution had begun. The AG rejected that reading. A 2005 AG opinion had explained that a prosecution continues while the accused is making her way through the judicial system and guilt or innocence has not been determined. The North Dakota Supreme Court later adopted that reasoning in Riemers v. City of Grand Forks, holding that the prosecution in that case was incomplete when the records were requested. The AG found the Herald's requested records active when it made its initial requests, so the department did not violate the open records law by withholding them then.

The court entered judgment on July 2, 2024 after the legislator pleaded guilty to an amended charge and waived trial and appeal. The Herald renewed its request, and the department released the detailed report and footage. The opinion reports that release as a fact; it does not impose a universal rule that all records must be released as soon as any case closes.

What this means for you

If you request records while a prosecution is pending

An arrest and the start of court proceedings did not end active status for these records. The AG applied N.D.C.C. § 44-04-18.7 to the detailed report and body-camera footage requested while prosecution remained pending. The department had provided a limited initial report, but the AG found no violation in withholding the remaining material at that time.

If you handle police records requests

The opinion examines the records' status at the time of the initial requests. It approved the department's denial under the active criminal investigative information exemption because prosecution was not complete. After judgment and a renewed Herald request, the department released the records. Those dates and actions matter to the opinion's result.

If you follow the criminal case

The legislator's waiver of trial and appeal is a fact in this record, alongside the July 2 judgment. The AG did not say every prosecution remains active until appeal rights expire, or address post-conviction proceedings. Its holding concerns the Herald's requests while this prosecution was pending.

Common questions

Why did an arrest not end the exemption?

N.D.C.C. § 44-04-18.7(4), quoted in the opinion, defines active investigative information by an ongoing investigation continuing with a reasonable good-faith anticipation of securing an arrest or prosecution. The AG relied on a prior opinion and Riemers to reject the argument that prosecution was already secured merely because charges were proceeding in court.

Did the North Dakota Supreme Court set a final-judgment or appeal test?

No such test appears in this opinion. It quotes Riemers as holding that the prosecution in that case was not complete when the open records request was made. The AG applied that reasoning to the Herald's requests during a pending prosecution.

What did police release before the case ended?

The department provided an initial open report with limited release information after the May 10 request. It withheld the detailed report and denied the May 20 body-camera request while the case was pending.

What happened after the court closed this case?

The Herald renewed its request and the department released the full police report and body-camera footage. The opinion says the renewed request was promptly honored; it does not decide the status of other records or other possible grounds for withholding them.

Does this opinion address dismissed charges?

No. Its facts involve a guilty plea to an amended charge and a judgment closing the case. It does not decide how the active-information exemption applies after a dismissal.

Background and statutory framework

N.D.C.C. § 44-04-18.7(1) exempts active criminal investigative information. Subsection (4), quoted in the opinion, includes information compiled by a criminal justice agency during an investigation of a specific act or omission and says it remains active while related to an ongoing investigation continuing with a reasonable good-faith anticipation of securing an arrest or prosecution in the foreseeable future.

The AG relied on N.D.A.G. 2005-O-13, which used a legal dictionary's definition of prosecution as a proceeding to determine guilt or innocence. The opinion also quotes the North Dakota Supreme Court in Riemers v. City of Grand Forks, 2006 ND 224, 723 N.W.2d 518: the investigation there was active because prosecution "was not complete at the time of [the open records] request." The opinion says the court balanced public access with due process protections. It does not specify a separate end-point test involving appeals or later proceedings.

Citations and references

• N.D.C.C. §§ 44-04-18, 44-04-18.7, and 44-04-21.1
• Riemers v. City of Grand Forks, 2006 ND 224, 723 N.W.2d 518
• N.D.A.G. 2005-O-13

Source

• Landing page: https://attorneygeneral.nd.gov/the-north-dakota-attorney-general-issued-an-opinion-to-the-grand-forks-police-department/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2026/03/2026-O-08.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-08

DATE ISSUED: March 23, 2026

ISSUED TO: Grand Forks Police Department

CITIZEN'S REQUEST FOR OPINION

Korrie Wenzel, Publisher of the Grand Forks Herald, requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the Grand Forks Police Department improperly denied a request for records related to a criminal investigation in violation of N.D.C.C. § 44-04-18.

FACTS PRESENTED

On May 10, 2024, a reporter from the Grand Forks Herald requested from the Grand Forks Police Department (Department) a police report related to the arrest of a state legislator on suspicion of driving under the influence. 1 The Department provided "[a] copy of the initial open report with limited release information" but did not provide the full detailed police report. 2 The Department explained to the reporter, "[a]t this time limited information is available for release as this report is still open within the court system. "3

On May 20, 2024, the Managing Editor of the Grand Forks Herald requested the body camera footage from the same arrest. 4 The Department denied the request on the ground that it constituted active criminal investigative information under N.D.C.C. § 44-04-18.7, which is exempted from the open records law. 5 The Department classified the case active while it was pending in court "because the prosecution had not been secured yet. " 6

1 Letter from Lt. Andrew Stein #316, Grand Forks Police Dep't, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (July 29, 2024); Grand Forks Police Dep't JustFOIA Portal, #24103142 - JUSTFOIA Requests, Request #PD-2024-329, Sav Kelly (May 10, 2024). 2 Letter from Lt. Andrew Stein #316, Grand Forks Police Dep't, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (July 29, 2024). 3 Email from Penny Johnson, Grand Forks Police Dep't, to Sav Kelly, Grand Forks Herald (May 13, 2024, 1:41 PM). 4 Letter from Lt. Andrew Stein #316, Grand Forks Police Dep't, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (July 29, 2024); Grand Forks Police Dep't JustFOIA Portal, #24103142 - JUSTFOIA Requests, Request #PD-2024-392, Hannah Shirley (May 20, 2024). 5 Letter from Lt. Andrew Stein #316, Grand Forks Police Dep't, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (July 29, 2024). 6 Id.

OPEN RECORDS AND MEETINGS OPINION 2026-O-08
March 23, 2026
Page 2

On July 2, 2024, the court entered judgment and closed the case after the state legislator pleaded guilty to an amended charge, explicitly waiving her right to a trial and appeal. 7 The Grand Forks Herald subsequently renewed its open records request to the Department, and the Department released the full police report and body camera footage. 8

ISSUE

Whether the Department violated N.D.C.C. § 44-04-18 by initially denying records under N.D.C.C. § 44-04-18.7 on the basis that the records constituted active criminal investigative information.

ANALYSIS

Unless otherwise provided by law, all records of a public entity are open. 9 Records containing "active criminal investigative information" are not subject to the open records law. 10 The law defines active criminal investigative information as follows:

"Criminal investigative information" means information with respect to an identifiable person or group of persons compiled by a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission, including information derived from laboratory tests, reports of investigators or informants, or any type of surveillance. Criminal investigative information must be considered "active" as long as it is related to an ongoing investigation that is continuing with a reasonable good-faith anticipation of securing an arrest or prosecution in the foreseeable future. 11

In a letter to the Department responding to the denial of the records request, Mr. Wenzel argued that the case was no longer "active" because the legislator had been arrested, and the prosecution element of the definition had been satisfied because the prosecution had already commenced and the case was in court. 12 However, that interpretation conflicts with prior opinions from this office and the North Dakota Supreme Court. A requester of a 2005 Attorney General opinion made the same argument, and the opinion analyzed the meaning of "prosecution" in the statute's definition of "active." 13 The opinion noted that the definition of "prosecution" is "a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with crime." 14 The opinion further noted that when a

7 Id. (emphasis added).
8 Id.
9 N.D.C.C. § 44-04-18(1).

10 N.D.C.C. § 44-04-18.7(1).
11 N.D.C.C. § 44-04-18.7(4).
12 Letter from Korrie Wenzel, Publisher, Grand Forks Herald, to Chief Mark Nelson, Lt. Andrew Stein, Grand Forks Police Dep't (May 22, 2024). 13 N.D.A.G. 2005-O-13. 14 Id. quoting Black's Law Dictionary 1221 (6th ed. 1990).

OPEN RECORDS AND MEETINGS OPINION 2026-O-08
March 23, 2026
Page 3

criminal defendant is "making his way through the judicial system, his prosecution has not been secured," and the defendant's "guilt or innocence has not been determined." 15 The opinion concluded that the criminal investigative information in that case remained active "because the prosecution is not complete." 16

The requester of the 2005 opinion also brought a civil action against the public entity involved in the opinion and raised the same argument. 17 The North Dakota Supreme Court adopted the reasoning of the 2005 Attorney General opinion and held the investigation in that case was active "because the prosecution . . . was not complete at the time of [the open records] request." 18 In so holding, the North Dakota Supreme Court honored a balance of the important public right to know and the essential due process protections under our Constitution.

Here, the Grand Forks Herald requested the records while the prosecution was still pending. Because the prosecution was not complete at the time of the request, under applicable legal provisions and case law the records constituted active criminal investigative information. The Department therefore did not violate the open records law by denying the request at that time. Importantly, the request was promptly honored once the criminal matter was complete.

CONCLUSION

The Grand Forks Police Department did not violate N.D.C.C. § 44-04-18 by denying the requested records because the records constituted active criminal investigative information under N.D.C.C. § 44-04-18.7.

Drew H. Wrigley
Attorney General

srh

cc: Korrie Wenzel

15 Id.
16 Id.
17 See Riemers v. City of Grand Forks, 2006 ND 224, 723 N.W.2d 518. 18 Riemers v. City of Grand Forks, 2006 ND 224, ¶ 18, 723 N.W.2d 518.