Did North Dakota’s health department violate open records law when a city produced records the department did not?

Plain-English summary

Keith Hapip asked whether the Oral Health Program of North Dakota’s Department of Health and Human Services had withheld records. He pointed out that the City of Bismarck produced records in response to an identical request that the department did not produce.

The department said it had given him every responsive record in its possession and withheld none. North Dakota law, as quoted in the opinion, defines a public record in part by the record’s possession or custody by a public entity or its agent. The AG said opinions on alleged open records violations must rely on facts supplied by the public entity. On the department’s stated facts, the AG found no violation.

The conclusion was limited to what the department possessed. The opinion did not say that the city’s documents were unimportant or resolve whether the city and department had maintained identical files. It found no withholding by the department on the facts it reported.

What this means for you

Records requesters

The opinion did not treat another agency’s production of additional records, by itself, as proof that the department withheld records. Its conclusion depended on the department’s statement that it possessed no other responsive records.

Public agency records staff

The AG’s no-violation finding rested on the agency’s account that it had produced all responsive records it possessed. The opinion applied the open records law to records in the agency’s possession or custody.

Common questions

Does a state agency have to provide records another city produced? The AG said a public entity is responsible for existing records it possesses. On the department’s account that it had no other responsive records, the city’s different response did not establish a violation by the department.

Did the AG independently inspect the two sets of records? The opinion did not describe such a comparison. It stated that the AG had to base the opinion on the public entity’s factual account and relied on the department’s statement that nothing was withheld.

What did the AG actually decide?
That the department did not violate the open records law on the facts it provided, because it had not withheld any responsive record in its possession.

Background and statutory framework

N.D.C.C. § 44-04-18 supplied the open records duty. The opinion quoted N.D.C.C. § 44-04-17.1(16), which included possession or custody in the definition of a record, and cited N.D.C.C. § 44-04-21.1 for the AG opinion process and its reliance on the entity’s facts. The holding turned on the department’s account of what records it actually held.

Citations

• N.D.C.C. § 44-04-18, open records law
• N.D.C.C. § 44-04-17.1(16), definition of a record
• N.D.C.C. § 44-04-21.1, AG opinion process

Source

• Landing page: https://attorneygeneral.nd.gov/the-north-dakota-attorney-general-issued-a-summary-opinion-to-north-dakota-department-of-health-and-human-services-2/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2026/09/2026-SO-21.pdf

Original opinion text

STATE OF NORTH DAKOTA

OFFICE OF ATTORNEY GENERAL
www. attorneyge ne ra I. nd. gov
(701) 328-2210

Drew H. Wrigley
ATTORNEY GENERAL

OPEN RECORDS AND MEETINGS SUMMARY OPINION
2026-SO-21

DATE ISSUED:

September 25, 2026

ISSUED TO:

North Dakota Department of Health and Human Services
SUMMARY OPINION 1

Keith T. Hapip Jr. requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the Oral Health Program of the Public Health Division of the North Dakota Department of Health and Human Services (DHHS) violated N.D.C.C. § 44-04-18 by not providing records responsive to his open records request. The requester alleges that DHHS withheld records because the City of Bismarck produced records in response to an identical request that DHHS did not produce in its response. DHHS states that it provided the requester with all the responsive records it had in its possession and did not withhold any responsive records. 2 This office must base opinions on alleged violations of the open records law on the facts provided by the public entity. 3 Based on the facts provided by DHHS, I conclude that DHHS did not violate the open records law because it did not withhold any responsive records in its possession. 4

Drew H. Wrigl
Attorney General
srh
cc:

Keith T. Hapip Jr.

1 This Summary Opinion is issued pursuant to the authority granted to this office in N.D.C.C. §

44-04-21.1 (1 ).
2 See N.D.C.C. § 44-04-18(1) ("Except as otherwise specifically provided by law, all records of a public entity are public records ..."); N.D.C.C. § 44-04-17.1(16) ('"Record' means recorded information of any kind, regardless of the physical form or characteristic by which the information is stored, recorded, or reproduced, which is in the possession or custody of a public entity or its agent and which as been received or prepared for use in connection with public business or contains information relating to public business"). 3 N.D.C.C. § 44-04-21.1(1). 4 See N.D.A.G. 2024-0-08 ("Public entities are only responsible for providing records that exist and that they have in their possession.").