Must a North Dakota school district obtain old bid records it no longer has to answer an open records request?

Plain-English summary

Nicole Johnson asked Williston Basin School District #7 for bid documents tied to the Innovation Academy renovation, completed around 2018 by the former Williston Public School District #1. District staff gave her board minutes, lease and construction agreements, and other relevant documents. The opinion says some bid records were absent from the current files "due to prior administrative actions." Superintendent Dr. Richard Faidley also contacted the contractors who submitted bids, but the District reported that this effort found no additional records.

Johnson asked AG Wrigley whether the District violated N.D.C.C. § 44-04-18. He concluded it had complied by providing all responsive records in its possession. The opinion says an entity generally has no obligation to obtain records it does not have and calls Faidley's bidder outreach "unrequired but laudable."

What this means for you

If you are a North Dakota school district records officer

The opinion holds that § 44-04-18 requires production of records actually in the entity's possession. § 44-04-18(4) provides that "nothing in this section requires a public entity to create or compile a record that does not exist," and the opinion notes a public entity "generally has no obligation to obtain records it does not have." The District's outreach to former bidders is described as "unrequired but laudable."

If you are a parent, journalist, or citizen requesting old district records

The District provided records it had but could not provide some older bid records absent from its current files. The opinion does not identify the reorganization as the cause of their absence. If you seek those bid documents, distinguish records the District holds from records it cannot locate; the opinion addresses the District's duty to provide records in its possession.

If you advise a public entity on open records compliance

The opinion's conclusion turns on the District providing all responsive records in its possession. When assessing a similar request, establish which responsive records the entity actually has. The opinion also notes that the Attorney General must base this opinion on the facts the public entity provides under § 44-04-21.1(1).

Common questions

Does the District have to find records that no longer exist?

No. The opinion is direct: under § 44-04-18(4), nothing in the open records statute "requires a public entity to create or compile a record that does not exist." A public entity also "generally has no obligation to obtain records it does not have." The duty is to produce what is in possession.

Did the 2020 district reorganization decide this case?

No. The opinion mentions that the former Williston Public School District #1 completed the project before reorganizing into District #7. It says the missing bid records were unavailable in the current files "due to prior administrative actions" and resolves the request based on the records District #7 possessed. It states no separate rule about which records transfer during reorganization.

What records did the District actually produce here?

Board minutes, lease and construction agreements, and other relevant documents. District staff sought clarification from Johnson several times. Faidley later wrote that the District had provided "everything that I could find in the District's records."

Did the Superintendent's outreach to bidders matter to the outcome?

The Attorney General called the effort "unrequired but laudable" and said Faidley exceeded the legal requirements by contacting the contractors. The conclusion rests on the District having provided all responsive records in its possession.

Background and statutory framework

North Dakota's open records framework is in N.D.C.C. ch. 44-04. The cornerstone is § 44-04-18(1): "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 "record" is defined in § 44-04-17.1(16) as recorded information of any kind in the possession or custody of the public entity, received or prepared for use in public business. The flip side, in § 44-04-18(4), is that the statute does not require an entity to create or compile records that do not exist. Earlier AG opinions have read the two provisions together to mean the duty extends to records actually held, not records that exist somewhere in the world. The opinion cites that line of authority: 2024-O-08, 2024-O-07, 2019-O-13, 2014-O-22, 2010-O-02, and 2004-O-05.

Johnson requested this opinion under § 44-04-21.1. The opinion notes that the Attorney General must base it on the facts the public entity provides under subsection (1).

The opinion mentions the 2020 reorganization as background to the Innovation Academy project. It does not decide how reorganization affects ownership or custody of records.

Citations

The opinion cites N.D.C.C. §§ 44-04-18 and 44-04-17.1(16) for the possession and existing-records rule. It quotes N.D.A.G. 2024-O-07, which quoted N.D.A.G. 2019-O-13: "the public entity generally has no obligation to obtain records it does not have." Footnote 10 also cites N.D.A.G. 2024-O-08, 2014-O-22, 2010-O-02, and 2004-O-05. Footnote 12 cites N.D.C.C. § 44-04-21.1(1) for the facts-provided rule.

Source

• Landing page: https://attorneygeneral.nd.gov/the-williston-basin-school-district-7/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2026/01/2026-O-01.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-01

DATE ISSUED: January 14, 2026
ISSUED TO: Williston Basin School District #7

CITIZEN'S REQUEST FOR OPINION

Nicole Johnson requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the Williston Basin School District #7 violated N.D.C.C. § 44-04-18 by failing to provide records.

FACTS PRESENTED

In May 2023, Nicole Johnson asked that Superintendent Dr. Richard Faidley of the Williston Basin School District #7 (District) provide her with the bid documents for the Innovation Academy renovation project completed in or around 2018. Because the project was completed by the former Williston Public School District #1 prior to its reorganization into District #7 in 2020, some of the bid records from that period were no longer available in the District's current files due to prior administrative actions.

In light of these circumstances, District staff corresponded extensively with Ms. Johnson, providing her with board minutes, lease and construction agreements, and other relevant documents. On several occasions, the staff sought clarification to ensure her request was fully understood. On May 30, 2023, Dr. Faidley informed Ms. Johnson that the District "ha[s] provided you with everything that I could find in the District's records." Beyond searching the District records, Dr. Faidley attempted to locate additional bid records by contacting all contractors who

1 Email from Nicole Johnson to Dr. Richard Faidley, Superintendent, Williston Basin Sch. Dist.
#7 (May 11, 2023, 7:34 PM). In the same email, Ms. Johnson also requested document related to other new projects. However, in her request for an opinion, she limited her issue to "the Articles for bids for the Innovation Academy." Email from Nicole Johnson to Off. of Att'y Gen. (June 12, 2023, 10:13 AM). Therefore, this opinion is limited to the request for bid records for the Innovation Academy project. 2 Letter from KrisAnn Norby-Jahner, Att'y, Vogel Law Firm, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Nov. 14, 2023). 3 Id. 4 Id. 5 Email from Dr. Richard Faidley, Superintendent, Williston Basic Sch. Dist. #7, to Nicole Johnson (May 30, 2023, 6:19 PM).

OPEN RECORDS AND MEETINGS OPINION 2026-O-01
January 14, 2026
Page 2

had submitted bids for the 2018 project. However, according to the District's response to this office, those efforts were not successful.

Although Ms. Johnson continued to demand further information, the District had already provided all responsive records in its possession and made unrequired but laudable efforts to locate any additional records.

ISSUE

Whether the District's response to a request for records complied with N.D.C.C. § 44-04-18 when some of the requested records are no longer available.

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 obligated only to provide records in its possession and is not required to create or compile records that do not exist. Thus, "the public entity generally has no obligation to obtain records it does not have."

The District, through Dr. Faidley, provided Ms. Johnson with all available records in its possession related to the Innovation Academy project. In addition, Dr. Faidley exceeded the legal requirements by contacting all contractors who submitted bids for the 2018 project in a commendable effort to locate any additional records. Accordingly, it is my opinion that the District complied with the open records laws when it provided all responsive records in its possession.

6 Id.
7 Letter from KrisAnn Norby-Jahner, Att'y, Vogel Law Firm, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Nov. 14, 2023). 8 Id. 9 N.D.C.C. § 44-04-18(1). 10 N.D.C.C. § 44-04-17.1(16) (definition of "record" includes "recorded information of any kind .
. . which is in the possession or custody of a public entity or its agent and which has been received or prepared for use in connection with public business or contains information relating to public business."); N.D.C.C. § 44-04-18(4) ("[N]othing in this section requires a public entity to create or compile a record that does not exist."); see also N.D.A.G. 2024-O-08; N.D.A.G. 2024-O-07; N.D.A.G. 2019-O-13, citing N.D.C.C. § 44-04-17.1(16); N.D.A.G. 2014-O-22; N.D.A.G. 2010- O-02; N.D.A.G. 2004-O-05. 11 N.D.A.G. 2024-O-07 (quoting N.D.A.G. 2019-O-13). 12 This office must base its opinion on the facts provided by the public entity. See N.D.C.C. § 44-04-21.1(1).

OPEN RECORDS AND MEETINGS OPINION 2026-O-01
January 14, 2026
Page 3

CONCLUSION

The District's response complied with N.D.C.C. § 44-04-18 because it provided all responsive records in its possession.

Drew H. Wrigley
Attorney General

amr

cc: Nicole Johnson