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
The Grand Forks Herald asked for the full police report and body-camera footage of a DUI arrest of a state legislator. The Grand Forks Police Department released a limited public report but withheld the detailed report and the body-cam footage, citing the "active criminal investigative information" exemption in N.D.C.C. § 44-04-18.7. After the legislator pleaded guilty to an amended charge in July 2024 and the case closed, the Department released the full records.
Herald publisher Korrie Wenzel asked the AG to opine that the case was no longer "active" once the legislator was arrested and the prosecution was in court. The AG disagreed.
The AG's reasoning: "active" means continuing with a reasonable good-faith anticipation of securing an arrest or prosecution. The North Dakota Supreme Court interpreted "prosecution" in Riemers v. City of Grand Forks (2006) and adopted the AG's earlier 2005 opinion: a case is in "prosecution" until guilt or innocence has been determined and the case is complete. While the legislator's case was still pending in court, prosecution had not been "secured." So the records were properly withheld at the time of the original request, and were properly released once the case closed.
What this means for you
If you are a news organization or citizen requesting police records about an ongoing case
The opinion holds that criminal investigative information remains "active" (and exempt under N.D.C.C. § 44-04-18.7) until the prosecution is complete. Adopting Riemers v. City of Grand Forks, 2006 ND 224, and the AG's 2005 opinion, the AG read "prosecution" as not "secured" until guilt or innocence has been determined and the case is complete. Arrest alone does not end active status.
If you are a North Dakota police department records officer
The opinion treats denial of records on the basis of N.D.C.C. § 44-04-18.7(1) as proper while a prosecution is pending. The Grand Forks Police Department's release of a "limited open report" during the pendency, followed by release of the full record once the legislator pleaded guilty and the case closed, is the pattern the AG approved.
If you are an arrested individual or defendant
The opinion notes that the North Dakota Supreme Court framed the active-investigation exemption as honoring "a balance of the important public right to know and the essential due process protections under our Constitution." Body-cam footage and detailed reports stay exempt while the prosecution is pending and become public once the case closes.
Common questions
Q: Why is the case still "active" once the defendant has been arrested?
A: Because "active" is tied to the prosecution, not the arrest. The statute says the information is 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." Until the prosecution is "secured," the investigation remains active.
Q: When is a prosecution "secured"?
A: When the case is complete, meaning a final judgment has been entered, the defendant's right to appeal has expired or been waived, and there is no pending post-conviction process. Riemers v. City of Grand Forks and the AG's 2005 opinion both adopt this interpretation.
Q: What if the defendant pleads guilty?
A: Once the plea is accepted and judgment entered (with the appeal right waived, as the legislator here did), the case is complete and the records become public.
Q: What if charges are dismissed?
A: A dismissal generally ends active status. Once the prosecution is no longer pending, the investigation is no longer active and the records are public, subject to other exemptions (privacy, witness identity protection, etc.).
Q: Can the department release a partial record while the case is active?
A: The Grand Forks Police Department released a "limited open report" with basic information while the prosecution was pending, and then released the full record (including body-cam footage) once the case closed. The opinion treats both steps as consistent with the statute.
Background and statutory framework
Section 44-04-18.7(1) exempts active criminal investigative information from the open records law. Subsection (4) defines the term:
"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.
The 2005 AG opinion (N.D.A.G. 2005-O-13) interpreted "prosecution" using Black's Law Dictionary: "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." The opinion concluded that during pending court proceedings, the defendant's "guilt or innocence has not been determined," so prosecution is not yet "secured."
The North Dakota Supreme Court adopted that reasoning in Riemers v. City of Grand Forks, 2006 ND 224, 723 N.W.2d 518. The Court held that the investigation in that case was active "because the prosecution... was not complete at the time of [the open records] request." The Court framed this as a balance between public access and due process.
Combining these authorities: an arrest does not end active status; a guilty plea or trial verdict (with appeal rights expired) does. The window between arrest and case closure is when the records are exempt.
Citations and references
Statutes:
- N.D.C.C. § 44-04-18 (open records)
- N.D.C.C. § 44-04-18.7 (active criminal investigative information)
- N.D.C.C. § 44-04-21.1 (AG opinion process)
Cases:
- Riemers v. City of Grand Forks, 2006 ND 224, 723 N.W.2d 518
Prior AG opinion:
- N.D.A.G. 2005-O-13 (definition of "prosecution" in active investigation context)
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
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. The Department provided "[a] copy of the initial open report with limited release information" but did not provide the full detailed police report. 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."
On May 20, 2024, the Managing Editor of the Grand Forks Herald requested the body camera footage from the same arrest. 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. The Department classified the case active while it was pending in court "because the prosecution had not been secured yet."
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. 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.
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. Records containing "active criminal investigative information" are not subject to the open records law. 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.
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. 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." 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." The opinion further noted that when a 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." The opinion concluded that the criminal investigative information in that case remained active "because the prosecution is not complete."
The requester of the 2005 opinion also brought a civil action against the public entity involved in the opinion and raised the same argument. 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." 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
cc: Korrie Wenzel