Can a North Dakota city hold administrative nuisance hearings before its regular meeting without giving notice, and can it withhold the city attorney's emails as work product?

Plain-English summary

Thirty minutes before the Crosby City Council's regular meeting on July 12, 2021, the council convened "administrative nuisance hearings" under city ordinance 305. The mayor and five council members attended. No notice was prepared, no agenda was prepared, and the local newspaper was not told.

The next day, a Crosby Journal reporter asked for the list of properties allegedly in violation, the council packets, any recordings or minutes, and the city attorney's emails about the hearings. The city provided the ordinance and stated all other materials were "protected by attorney client privilege." Cecile Wehrman, the Journal's publisher, requested an AG opinion.

AG Drew Wrigley found two violations:

1. The nuisance hearings were a meeting. A quorum of the council was present and they were considering public business (whether properties violated ordinance 305). Once that threshold is met, the rules of § 44-04-20 apply: a written notice, posting at the principal office and meeting location, and personal notice to the official newspaper and to anyone on file. Crosby did none of those. The council "did not realize official notice for this meeting should have been sent to the newspaper."
2. The blanket attorney-work-product claim was overbroad. The exemption in § 44-04-19.1(6) requires all three elements per record: prepared by an attorney representing the entity (or at the attorney's direction), reflects a mental impression or legal theory, and was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings. The AG reviewed the actual emails Crosby produced and found that some attachments were publicly available court records and that the email chains had not been analyzed line by line. Including an attorney's email in a chain does not protect the whole chain; only the attorney's qualifying portions can be redacted.

The Journal had also alleged that the regular meeting minutes failed to mention the nuisance hearings (§ 44-04-21(2)). Crosby produced separate minutes for the nuisance hearings, so the AG found no violation on that score.

Remedy: provide the July 12 nuisance hearing minutes free of charge to The Journal and anyone else who asks. Review the city attorney emails record by record and redact only the parts that meet all three work-product elements; release the rest free of charge. Seven-day cure window before mandatory costs, fees, and possible personal liability under § 44-04-21.2.

What this means for you

If you serve on a North Dakota city council that holds pre-meeting workshops or hearings

The opinion holds that a "meeting" exists whenever a quorum is present and public business is discussed, citing the definitions in § 44-04-17.1(9), (12), (15). The opinion concludes that Crosby's pre-regular-meeting administrative nuisance hearings were a meeting requiring notice under § 44-04-20, including posting and notice to the official newspaper.

If you are a city attorney evaluating an attorney work product claim

The opinion identifies three elements that must all be present per record under § 44-04-19.1(6): (a) prepared by an attorney representing the entity (or at the attorney's direction); (b) reflects a mental impression, conclusion, litigation strategy, or legal theory; and (c) prepared exclusively for civil or criminal litigation, adversarial administrative proceedings, anticipated litigation, or guidance on legal risks. The opinion concludes that including an attorney's email in a chain does not protect the rest of the chain, and that publicly available court records attached to an email are not work product.

If you are a city auditor responding to a records request

The opinion treats a blanket denial citing attorney-client privilege or work product as insufficient when the entity has not analyzed each record against all three statutory elements. The opinion cites § 44-04-18.10 for the rule that, where confidential and open content coexist, the entity must release the open portions after redaction.

If you are a journalist or newspaper covering local government

The opinion ordered Crosby to provide the July 12 nuisance-hearing minutes free of charge to The Journal and anyone else requesting them, and to re-review the city attorney emails and release portions that do not satisfy all three work-product elements, also free of charge.

Common questions

Q: We are just doing an informal review, not making a decision. Does that need notice?
A: Yes if a quorum is present and the topic is public business. Definitions are in § 44-04-17.1(9), (12), (15). "Informal" or "workshop" labels do not change the legal test.

Q: What are the three elements of attorney work product?
A: Under § 44-04-19.1(6): (a) prepared by an attorney representing the public entity (or prepared at that attorney's express direction); (b) reflects a mental impression, conclusion, litigation strategy, or legal theory; and (c) prepared exclusively for civil or criminal litigation, adversarial administrative proceedings, in anticipation of reasonably predictable litigation, or for guidance on legal risks and weaknesses of an action of the entity. All three must be true for the record to be exempt.

Q: An email chain has a city attorney comment in the middle. Is the whole chain protected?
A: No. Only the portions that meet all three elements are protected. The factual portions, the underlying documents, and the non-attorney emails must be released. Redact, do not blanket-deny.

Q: A court document is attached to an email. Is the attachment work product?
A: Generally no. Publicly available court records do not become privileged because an attorney emailed them. The AG specifically flagged this point in the Crosby review.

Q: What about attorney-client privilege?
A: That is a different exemption from attorney work product (§ 44-04-19.1(1) versus 19.1(6)). The Crosby opinion did not analyze attorney-client privilege separately because Crosby invoked it loosely. A proper denial under § 44-04-19.1(1) requires identifying a privileged communication between attorney and client, made in confidence, for the purpose of obtaining legal advice. Same line-by-line analysis required.

Q: How can I challenge a blanket denial?
A: File an AG opinion request under § 44-04-21.1. The process is free. If the AG finds a violation, the entity must release the improperly withheld records free of charge within seven days or face civil costs and fees.

Background and statutory framework

North Dakota's open records and meetings statutes apply broadly to public entities. The key thresholds:

• A "meeting" exists when a "quorum" considers or discusses "public business." Definitions in § 44-04-17.1.
• Notice requirements (§ 44-04-20) include written notice at the principal office and meeting location, plus newspaper notification for special meetings.
• All records are open by default (§ 44-04-18) unless a specific statutory exemption applies.
• The denial must cite the specific authority in writing if asked (§ 44-04-18(7)).
• If a record has confidential and open parts, the entity must release the open parts after redaction (§ 44-04-18.10).

The attorney work product exemption (§ 44-04-19.1(6)) is one of the most over-asserted exemptions. The AG has analyzed it in multiple opinions, including N.D.A.G. 2002-O-05 (Wahpeton Public School District) and 2021-O-05 (City of Minot), both cited here. The doctrine: each record stands on its own; the entity has to do the analysis; "this email mentions the lawyer" does not satisfy the test.

The Crosby case adds nothing doctrinally new but is a useful worked example: emails between city employees and the city attorney about a nuisance demolition list, where two of the attachments were public court records and the chains had not been parsed for redaction.

Citations

• N.D.C.C. § 44-04-17.1(9), (12), (15) (definitions of meeting, public business, quorum)
• N.D.C.C. § 44-04-18 (records open by default)
• N.D.C.C. § 44-04-18(7) (written denial requirement)
• N.D.C.C. § 44-04-18.10(1), (2) (partial release after redaction)
• N.D.C.C. § 44-04-19.1(1), (6) (attorney work product exemption and three elements)
• N.D.C.C. § 44-04-20(1), (2), (4), (5) (notice content and posting)
• N.D.C.C. § 44-04-21(2) (minutes of meetings)
• N.D.C.C. § 44-04-21.1, .1(2) (citizen AG opinion request, seven-day cure)
• N.D.C.C. § 44-04-21.2 (civil enforcement and personal liability)
• Prior AG opinions cited: N.D.A.G. 2002-O-05; 2014-O-12; 2015-O-12; 2015-O-14; 2016-O-02; 2018-O-12; 2018-O-19; 2020-O-01; 2021-O-03; 2021-O-05; 2022-O-03

Source

• Landing page: https://attorneygeneral.nd.gov/newspaper-must-be-notified-of-administrative-nuisance-hearings/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2022/12/2022-O-09.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
2022-O-09

DATE ISSUED: September 29, 2022
ISSUED TO: City of Crosby

CITIZEN'S REQUEST FOR OPINION

This office received a request for an opinion under N.D.C.C. § 44-04-21.1 from Cecile Wehrman, Publisher of The Journal, asking whether the City of Crosby violated N.D.C.C. §§ 44-04-20 and 44-04-18 by failing to provide notice of a special meeting and improperly denying a request for records.

FACTS PRESENTED

Thirty minutes before the Crosby City Council's regular meeting on July 12, 2021, the City Council held administrative "nuisance hearings." Mayor Bert Anderson and Councilmen Doug Anderson, Kjell Vassen, Don Wolf, Jerry King, and Brian Lund attended. No notice was prepared or posted nor was an agenda prepared.

On July 13, 2021, Brad Nygaard, reporter and photojournalist with the Crosby Journal, requested "copies of the list of properties in alleged violation of City of Crosby Ordinance 305 . . . copies of the packets distributed to City Council members at the administrative hearing, including any photographs, letters, emails, court documents (warrants) or notes . . . copy of any recordings, minutes, or notes kept by City of Crosby employees during said administrative hearing, including any determinations made, agreements of concessions made between the City of Crosby and individual property owners." Ordinance 305 was provided the next day. On July 16, 2021, the Crosby City Attorney informed Mr. Nygaard his request had been fulfilled with the exception of e-mails from the City Attorney's office which were "protected by attorney client privilege."

The Journal also alleged a violation of N.D.C.C. § 44-04-21(2) because the minutes from the July 12 regular meeting made "no mention of the nuisance proceedings." Minutes must be kept of all open meetings and are records subject to N.D.C.C. § 44-04-18. The City of Crosby provided this office with the minutes for the July 12 administrative nuisance hearings; accordingly, there is no violation.

ISSUES

1. Whether the City of Crosby properly noticed its July 12, 2021, administrative nuisance hearings.
2. Whether the City of Crosby properly withheld records as attorney work product.

ANALYSIS

Issue One

All meetings of a governing body of a public entity must be open to the public, and notice of the meeting must be provided in substantial compliance with N.D.C.C. § 44-04-20. A "meeting" occurs when a "quorum" of a governing body is present and the governing body's "public business" is considered or discussed.

Notice must be given to the public before each meeting. The notice must include the date, time, and location of the meeting and must list the topics to be considered. Notice must be posted at the principal office of the governing body holding the meeting and, on the day the public entity meets, at the location of the meeting. The governing body's presiding officer is responsible for providing an initial public notice at the same time the governing body's members are notified of the meeting.

If the public entity creates an agenda for a meeting, the public entity must follow the open meeting posting requirements for the agenda as well as the meeting notice requirements. However, the lack of an agenda on the notice does not affect the validity of the meeting.

A quorum of the Crosby City Council met and considered public business at the July 12, 2021, administrative nuisance hearings. The City Council did not prepare a meeting notice or meeting agenda for the nuisance hearings, no meeting notice was posted at any of the required locations. Further, the City Council did not realize official notice for this meeting should have been sent to the newspaper. As a result, the City Council violated North Dakota open meetings laws.

Issue Two

"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." If a public entity denies a records request, the denial must indicate the entity's specific authority for denying access to the requested record and be made in writing, if requested. A public entity may not deny a request for an open record on the ground the record also contains confidential or closed information. "[I]f confidential or closed information is contained in an open record, a public entity shall permit inspection and receipt of copies of the information contained in the record that is not confidential or closed, but shall delete, excise, or otherwise withhold the confidential or closed information."

As stated above, Crosby denied a request for records and cited the exemption in N.D.C.C. § 44-04-19.1 for attorney work product as the reason for the denial.

For the purposes of open records, "attorney work product" is defined as:

any document or record that:
a. Was prepared by an attorney representing a public entity or prepared at such an attorney's express direction;
b. Reflects a mental impression, conclusion, litigation strategy, or legal theory of that attorney or the entity; and
c. Was prepared exclusively for civil or criminal litigation, for adversarial administrative proceedings, in anticipation of reasonably predictable civil or criminal litigation or adversarial administrative proceedings, or for guidance on the legal risks, strengths, and weaknesses of an action of a public entity.

All three elements for attorney work product must be present for a record to be exempt under N.D.C.C. § 44-04-19.1.

Previous opinions issued by this office illustrate the requisite analysis to withhold records under the attorney work product exemption. In an opinion issued to the City of Minot, this office determined the city improperly withheld records purported to be attorney work product under N.D.C.C. § 44-04-19.1 because only parts of the records were protected by that exemption. After reviewing the requested notes, "it [was] clear that many of the notes [were] a factual narrative and [did] not reflect the impressions of the attorney." "[S]ome statements of the attorney in the notes could be classified as attorney work product or protected under other provisions of N.D.C.C. § 44-04-18.1 for public employees, [but] there are notes that do not fall within any statutory protection." "The mere fact that it was an attorney who made the notes does not automatically mean the elements of attorney work product are met. The public entity must still make an analysis of the records to determine whether there are any statutory exceptions." To remedy the violation, the City of Minot was directed to review the notes and redact any with statutory exceptions.

In an opinion issued to the Wahpeton Public School District, this office concluded the school district properly withheld attorney work product under N.D.C.C. § 44-04-19.1 but also improperly withheld records that did not satisfy the criteria for that exception. The records at issue were created by the school district's law firm and another law firm in Minneapolis hired to conduct an investigation.

This office determined the properly withheld records were records that contained discussions of legal impressions and theories; and summaries of information, events, and witness interviews the attorney felt were relevant to the legal issues raised in a complaint. Regarding the improperly withheld records that did not meet the criteria for attorney work product, the opinion stated "[a] simple factual narrative does not include any impressions or work product of the attorney or the entity and would not be protected under N.D.C.C. § 44-04-19.1."

In the current matter, Crosby provided the requested e-mails to this office. The records included e-mails between city employees and the city attorney relating to the nuisance hearing demolition list and attachments to those e-mails. Upon review, some of the emails and attachments do not meet all three requirements for the attorney work product exemption. For example, two attachments are publicly available court records. Further, the e-mails apparently were not fully analyzed to determine which parts of them may be exempt and which parts must be provided to the requester. The fact that an e-mail from an attorney is included in an e-mail chain does not automatically mean the elements of attorney work product are met, and it certainly does not protect the entire e-mail chain. If any part of the e-mail chain includes an e-mail drafted by an attorney which meets all three elements for the attorney work product exemption in N.D.C.C. § 44-04-19.1, only that portion of the e-mail chain is exempt and may be redacted; the rest of the record must be provided. Crosby violated the open records law when it denied a request for emails by citing attorney work product without fully analyzing all three elements and redacting records that are otherwise open to the public.

CONCLUSION

1. The City of Crosby did not properly notice its July 12, 2021, special meeting.
2. The City of Crosby improperly denied part of a request for records as attorney work product.

STEPS NEEDED TO REMEDY VIOLATION

The July 12, 2021, "nuisance hearing" minutes must be provided to the Journal and anyone else requesting them, free of charge.

The City of Crosby must review the e-mails and may redact any parts of them which satisfy statutory exceptions. The remaining e-mails must be released free of charge to the Journal and anyone else who requests them.

While I have reason to expect the City Council will remedy this situation, failure to take the corrective measures described in this opinion within seven days of its date will result in mandatory costs, disbursements, and reasonable attorney fees if the person requesting the opinion prevails in a civil action under N.D.C.C. § 44-04-21.2. The failure also may result in personal liability for the person or persons responsible for the noncompliance.

Drew H. Wrigley
Attorney General
aml

cc: Cecile Wehrman (via email only)