If a North Dakota school district can't find old bid records because the project was finished by a predecessor district before reorganization, did it violate the open records law?
Plain-English summary
Nicole Johnson asked Williston Basin School District #7 for the bid documents tied to the Innovation Academy renovation, a 2018 construction project. The District's superintendent, Dr. Richard Faidley, gave her board minutes, lease and construction agreements, and the related documents he could find. Some of the original bid records were no longer in the District's files. The renovation had been completed by the predecessor Williston Public School District #1, which reorganized into Williston Basin #7 in 2020, and earlier administrative actions meant some bid-period records did not survive into the current District's files. Faidley still went out and contacted every contractor who had submitted a bid in 2018 to look for additional records. That outreach did not turn up anything more.
Johnson asked AG Wrigley to opine on whether the District violated N.D.C.C. § 44-04-18. Wrigley said no. North Dakota's open records law obligates a public entity to make available the records it possesses. It does not require the entity to create records that don't exist or to track down records held elsewhere. The District provided every responsive record in its possession. The bidder outreach was "unrequired but laudable."
What this means for you
If you are a North Dakota school district records officer
When a request comes in for old project records and your files no longer have them, the open records statute does not put you on the hook to recreate them. Two things satisfy your duty under § 44-04-18:
- Search the records in your current possession and produce every responsive record.
- Tell the requester, in writing, what you found, what you could not find, and why.
A clear "we have provided you with everything we could find in the District's records" message, like the one in this opinion, is exactly what the AG looked for. You do not have to call former contractors or chase records held by other districts, even where there is a reorganization in the chain. If you do anyway, that is a courtesy and the AG will note it favorably, but it is not a legal duty.
If you are a parent, journalist, or citizen requesting old district records
Be aware of the practical limits. School district reorganizations, retention schedules, and routine destructions all result in lost paper. If a district says the records no longer exist, the open records statute does not force creation of records or recovery of records that have left the agency. Three more productive steps when the trail goes cold:
- Ask the district which contractors or counterparties were involved, then request records from those parties (private bid documents are not public records, but some contractors will share).
- Ask any predecessor or successor district whether the records moved with the reorganization.
- Check the State Records Retention Schedule to see whether the records were eligible for routine destruction.
If you advise a public entity on open records compliance
Two operational pointers from this opinion are worth keeping in a desk file. First, document your search. The AG cited the District's emails to the requester, the Superintendent's affirmation that he had provided everything he could find, and the bidder outreach. That paper trail is what carries you across the line. Second, when records are gone because of a prior administrative decision (a destruction, a transfer, a reorganization), say so plainly in the response. Vague non-answers invite an open-records complaint; specific accounts of what happened to the records usually satisfy a requester or, failing that, the AG.
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.
What if the missing records were once held by a predecessor entity?
Same answer. The Innovation Academy project was completed by Williston Public School District #1 in 2018. That district reorganized into District #7 in 2020. Whatever records survived the reorganization are part of District #7's files; whatever did not survive is not. The successor district is not legally required to track the records back through the reorganization or contact third parties.
What records did the District actually produce here?
Board minutes, lease and construction agreements, and other relevant documents the Superintendent could locate. The Superintendent also corresponded extensively with the requester for clarification, then sent the records he could find with a clear written statement that the production was complete to the best of his ability.
Did the Superintendent's outreach to bidders matter to the outcome?
The AG mentioned it but did not need it for the holding. The District would have complied with § 44-04-18 just by producing the records it possessed and informing Ms. Johnson about the missing items. The bidder outreach is treated as "exceeded the legal requirements" and "commendable." Future records officers should not treat that outreach as an implied new minimum.
Is there an appeal from this AG opinion?
The opinion process under N.D.C.C. § 44-04-21.1 is administrative; the AG's opinion is the ordinary endpoint. A requester who disagrees can file a civil action under the open records chapter. Note that the statute requires the AG to base the opinion on the facts the public entity provides, per § 44-04-21.1(1), so a requester challenging the factual record is fighting on procedural ground.
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.
The opinion process itself is in § 44-04-21.1. Citizens or organizations may request a written AG opinion on whether a public entity violated the open records or open meetings provisions. Subsection (1) provides that the AG's opinion is based on the facts as the public entity provides them, which sets up the deferential factual review applied here.
District reorganization, the structural fact behind this dispute, is governed elsewhere in title 15.1 (school districts), but the records consequence is straightforward: when one district succeeds another, only the records that physically transfer become part of the successor's files for open-records purposes.
Citations
The opinion's main authority is the open records statute itself, N.D.C.C. §§ 44-04-18 and 44-04-17.1(16). The reasoning leans on N.D.A.G. 2024-O-07's quotation of N.D.A.G. 2019-O-13 ("the public entity generally has no obligation to obtain records it does not have"). Earlier AG opinions in the same line are 2024-O-08, 2014-O-22, 2010-O-02, and 2004-O-05. The procedural cap on the AG's factual review comes from N.D.C.C. § 44-04-21.1(1).
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
Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.
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
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.
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