North Dakota Freedom of Information Act

What is the North Dakota Freedom of Information Act?

The Freedom of Information Act (FOIA) makes all government records held by its agencies open to the public unless another law prohibits such records' disclosure. Each state has its version of the FOIA that allows access to public records. The FOIA is primarily a form of a check to government corruption. It holds the government at all levels accountable while ensuring that the public is well informed on all government transactions.

North Dakota's FOIA, the Open Records Statute, which makes all non-exempt government records open to the public, is contained in Chapter 44-4 of the North Dakota Century Code. Under the North Dakota Open Records Statute, anyone has the right to view or obtain a copy of public records. They are not obliged to state the reason for requesting a copy of public records and are not required to provide identification during a request. The North Dakota Open Records Statute applies to all local and state government agencies that receive support by or expend public funds. These include public schools, bureaus, commissions, boards, and non-profit organizations (if supported by public funds). Contractors who provide services on behalf of public agencies are also subject to this law. North Dakota courts are not subject to the Open Records Statute. District Court clerks keep and release court records in line with policies and practices the Supreme Court adopts.

The North Dakota Open Records Statute was adopted in 1975 and has had several amendments. The 1977 and 1993 modifications did not significantly change the Statute. The 1997 amendments provided public access to electronic records and clarified some terminologies, while the 1999 modification approved a fee for locating records whose search duration stretches beyond one hour. The 2001 amendments of the Open Records Statute explained how the law applies to copyrighted material and pending litigation. The modifications made in 2005 authorized public agencies to establish and charge a per-copy fee for redacting confidential information from requested records if doing so takes longer than one hour. The 2007 modifications permit public bodies to collect payment before providing any public records-related service, including mailing copies of records to requesters. The amendments in 2011 made additional exposition on access and fees related to electronic records, while the 2016 modifications clarified several sections in the North Dakota Open Records Statute.

What is Covered Under the North Dakota Freedom of Information Act?

All public records are subject to the North Dakota Open Records Statute, provided they are not exempt from disclosure. According to Section 44-04-17.1(16) of the North Dakota Century Code, records created or held by agents of public agencies are covered by the Open Records Statute. Such records/information, regardless of physical form in which they exist or are reproduced in the custody of public agencies, are subject to the open records law. They are used in connection with government/public business and include memos, reports, outlines, minutes, contracts, and travel vouchers. Others are notes, telephone records, and employee salary and job performance records. The North Dakota Open Records Statute also covers all records/documents generated by third-party contractors and possessed by public agencies.

What Records are Exempt from the Freedom of Information Act in North Dakota?

Besides public records that are subject to the North Dakota Open Records Statute, the state has two other classes of records. The first consists of documents that are confidential and prohibited from being open in public. A public agency has no discretion regarding the disclosure of these documents. The second class consists of documents that are not confidential but are also not subject to the Open Records Statute. They are considered exempt, and disclosure by public agencies is discretionary.

According to Section 44 of the North Dakota Century Code, the following records are exempt from the Open Records Statutes and may be withheld at the discretion of public agencies:

Law enforcement records having a person's data, including:
- Day/month of birth (the birth year is not exempt)
- Weight and height
- Driver's license number
- Personal and home cell phone numbers
- Home address (zip, city, and state are open)
Personal information of public employees such as employee ID number, home address, and personal/home phone numbers
Public employees' personal financial information that is used for payroll purposes
Financial account numbers
Any information in records of a correctional facility or criminal justice agency, that if disclosed, could be used to find the witness to a crime or the victim
Sex or homicide crime scene images or any image of a minor victim of a crime
Correspondence between a legislator and a public officer or employee
Recordings of 911 calls and corresponding responses
Critical infrastructure information and security system plan crucial to maintaining public safety
Active litigation records and attorney work product
Criminal investigative information or criminal intelligence, that if disclosed, may jeopardize an officer's safety
Employment applications with a public agency when the agency has yet to name successful applicants

The following records/information are confidential in North Dakota and cannot be released to the public:

Medical treatment records of public employees
Names of deceased or injured individuals when law enforcement has not informed the next of kin or for 24 hours, whichever happens first
Homes address and phone number of supreme court justices, probations officers, district court judges, prosecutors, juvenile court directors, employees of local or state correctional facilities, or law enforcement
Social security number
Foster care records
Research records of colleges and universities
Sales, income, and use tax returns and information
Trade secret and proprietary financial and commercial information that has not been made public
Information on ongoing fire investigations
Photographs, video/audio recordings, papers, or autopsy, except the final report of death before eight days when it is completed
Electronic security codes and passwords

How Do I File a North Dakota Freedom of Information Act Request?

An individual can file a North Dakota Open Records Statute request with the public agency possessing such a public record after identifying it. Generally, as stipulated in the Open Records Statutes, no public agency can require a person to make a public record request in person or in writing. However, a request must reasonably identify a record in the custody of a public agency. The North Dakota Open Records Statutes generally recognizes public record requests by mail and email, whichever a public agency adopts.

For example, the North Dakota Department of Environmental Quality (DEQ) suggests downloading available public records on its website without making an open records request. Requesters can also make open records requests to the DEQ by completing the Environmental Records Request Form and submitting via email or by mail to:

North Dakota Department of Environmental Quality
Director: David Glatt
Office of the Director-Open Records
4201 Normandy Street
Bismarck, ND 58503-1324
Hours:
Monday - Friday: 8:00 AM to 5:00 PM
Phone: (701) 328-5150
Fax: (701) 328-5200
Email: dglatt@nd.gov

To request a public record from any government agency in North Dakota, retrieve their contact from the State Agencies List maintained on the North Dakota government website. An agency cannot create or compile records that do not exist on file to fulfill a public record request. Similarly, it does not have to fetch records from other public agencies that it does not have. A public agency can advise a public record requester to access a record online or on its website if available. In such a case, the agency is not required to provide a copy of the record unless the requester cannot access the internet.

What is the Cost of a Freedom of Information Act Request in North Dakota?

Under the North Dakota Open Records Statute, obtaining copies of other record types besides paper documents may attract the actual cost of copying them. Such fees usually include the cost of labor, equipment, and materials. According to Section 44-04-18 of the Open Records Statute, a public agency may charge a requester up to 25 cents per page for legal-size or standard letter paper. Generally, public agencies do not charge requesters for the first hour of searching requested records, including electronic records. However, where search duration goes beyond the first hour, an agency may charge $25 per hour for finding such a record. If locating a requested record involves redacting exempt or confidential information, an agency may also charge another $25 per hour (after the first hour).

How Long Does it Take to Respond to a Freedom of Information Act Request in North Dakota?

The North Dakota Open Records Statute does not stipulate a specific time frame for a public agency to make a requested public record available to requesters. However, it requires them to respond within a reasonable time, depending on many factors, including the type of records sought and the scope. Typically, public agencies either provide the requested records or deny them while explaining the legal authority backing the denial.

In North Dakota, a public agency that declines to provide an exempt record commits no violation if their reason for denying it is that it does not exist. An agency may refuse to provide access to or copies of its records if repeated requests disrupt its official operations. However, the agency must notify the requester in writing when this happens. Under the Open Records Statute. an aggrieved requester may seek the Attorney General's opinion within 30 days of the alleged refusal on whether an agency's refusal was appropriate.