Is it OK to wait six weeks to give a citizen meeting minutes after she requested them, and did the special meeting itself get proper notice?

Plain-English summary

Crystal Hendrickson asked the AG about the North Prairie Regional Water District's handling of her open records request. The Board held a special meeting on November 1, 2021. On November 3 (two days later) she asked for the meeting minutes. The minutes did not arrive until December 13, 2021, over a month later. She also alleged the special meeting itself was not properly noticed.

AG Wrigley split the answer. On notice, the Board got it right. North Dakota's open meetings law (§ 44-04-20) requires posting at the meeting location and the principal office, plus website posting; for special meetings, the entity must also notify its official newspaper and any news media that asked to be notified. The Board emailed the special meeting notice to the local newspaper on Friday, October 22, 2021 (eleven days before the meeting), followed up with a Monday call to confirm, and posted the notice on the Board's website the same Friday. That satisfied the substantial-compliance test.

On records, the Board lost. Section 44-04-18(8) requires a response to a records request within a reasonable time. "Reasonable" is fact-specific. Prior AG opinions have catalogued the kinds of reasons that justify some delay: attorney consultation when records' open status is doubtful, large-volume review, redaction needs, staff availability and workload. The Board offered no explanation for its six-week delay on a single set of meeting minutes. The AG cited prior opinion N.D.A.G. 2014-O-25 for the proposition that even a two-week delay on one record is unreasonable. Six weeks for one record is well over the line. No remedial action was needed because the records were eventually provided.

What this means for you

If you are a records custodian or board office manager

The opinion holds that § 44-04-18(8) requires a response to a records request within a reasonable time, and treats over a month with no explanation as an unreasonable delay for a single set of meeting minutes. The opinion follows N.D.A.G. 2014-O-25 in stating that a two-week delay on one record is unreasonable.

If you are a board secretary issuing special-meeting notice

The opinion treats the Board's process as satisfying § 44-04-20: emailing the notice to the official newspaper, following up by phone, and posting on the Board's website, all eleven days before the meeting. The opinion treats those steps as substantial compliance.

If you are a citizen who has experienced a long records-response delay

The opinion notes that the AG must base findings on facts the public entity provides under § 44-04-21.1(1). The Board offered no explanation for the six-week delay; the opinion treats that absence of explanation as weighing against the Board. Because the records were ultimately provided, the opinion required no further remedial action.

Common questions

Q: What is the deadline for records responses in North Dakota?
A: There is no fixed deadline. Section 44-04-18(8) requires a "reasonable" response. The AG's office reads that as tight for simple requests, with more leeway for complex ones.

Q: Does the entity have to give a reason for the delay?
A: Not affirmatively, but if a delay is challenged via an AG opinion request, the absence of any explanation tells against the entity. Documenting reasons contemporaneously is the safe practice.

Q: What counts as 'substantial compliance' with special meeting notice?
A: The opinion did not state a rigid test. Posting at the office and meeting location, posting on the website, and notifying the official newspaper and any media that asked to be notified is the safe combination.

Q: What if the newspaper does not actually publish the notice?
A: Under the statute, the entity's obligation is to provide the notice, not to ensure publication. The Board here followed up with the newspaper Monday after the Friday email, which is good practice.

Background and statutory framework

North Dakota's open meetings law is in N.D.C.C. § 44-04-19 (open meetings) and § 44-04-20 (notice). Subsection (4) covers posting; subsection (6) covers emergency and special meetings. The open records law is in § 44-04-18, with § 44-04-18(8) the reasonable-time requirement. Section 44-04-21.1 gives citizens the right to ask the AG for an opinion on violations, and § 44-04-21.1(1) requires the AG to base the opinion on facts the public entity provides.

The reasonable-time line of opinions is long. N.D.A.G. 2014-O-25 is the leading "two-week delay on one record is unreasonable" precedent. Other opinions in 2019, 2017, 2014, 2013, 2012, 2010, 2008, 2004, 2003, and 1998 catalog acceptable reasons for delay (attorney consultation, redaction, volume review, staff availability).

Citations

• N.D.C.C. § 44-04-18(1) (open records)
• N.D.C.C. § 44-04-18(8) (reasonable response time)
• N.D.C.C. § 44-04-20 (notice; special and emergency meetings)
• N.D.C.C. § 44-04-21.1 (citizen request for AG opinion)
• N.D.A.G. 2014-O-25 (two-week delay on one record unreasonable)

Source

• Landing page: https://attorneygeneral.nd.gov/special-meeting-notice-complied-with-open-meetings-law-but-delay-in-providing-records-violated-open-records-law/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2022/09/2022-O-12.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
2022-O-12

DATE ISSUED: September 29, 2022
ISSUED TO: North Prairie Regional Water District

CITIZEN'S REQUEST FOR OPINION

Crystal Hendrickson requested an opinion under N.D.C.C. § 44-04-21.1 from this office regarding whether North Prairie Regional Water District violated N.D.C.C. § 44-04-20 by failing to properly notice a special meeting and failing to provide records within a reasonable time.

FACTS PRESENTED

The North Prairie Regional Water District Board (Board) held a special meeting on November 1, 2021. On November 3, 2021, Crystal Hendrickson requested the minutes from that meeting. Ms. Hendrickson alleges the Board failed to provide notice of the meeting to its official newspaper, post notice on its website, and provide requested records.

ISSUE

1. Whether the North Prairie Regional Water District provided notice of its November 1, 2021, special meeting in substantial compliance with N.D.C.C. § 44-04-20.

2. Whether the North Prairie Regional Water District provided records responsive to a request within a reasonable time.

ANALYSIS

Issue 1

Unless otherwise provided by law, public notice must be given before each meeting of a public entity. Meeting notices must be posted at the principal office of the governing body, if such an office exists, and at the location of the meeting on the day of the meeting. Meeting notices also must be filed in the appropriate office or posted on the public entity's website. For emergency or special meetings, notice also must be given to the public entity's official newspaper and any representatives of the news media who requested to be notified of the special meetings.

Opinions issued by this office must be based on the facts given by the public entity. According to the Board, notice of the November 1, 2021, meeting was e-mailed to the newspaper on Friday, October 22, 2021. The following Monday, the Board's Office Manager/Billing Coordinator contacted the newspaper again about the meeting notice. The meeting notice was posted on the Board's website on October 22, 2021.

Accordingly, it is my opinion the Board complied with the notice requirements of N.D.C.C. § 44-04-20 for its November 1, 2021, special meeting.

Issue 2

"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 public entity must provide a response to a records request within a reasonable time. Whether records have been produced within a reasonable time will depend on the facts of a given situation. Numerous past opinions have detailed what would reasonably contribute to a delay in providing records. Examples of causes for reasonable delays include the need for attorney consultation when there is reasonable doubt whether the records are open to the public, the need to review large volumes of documents to respond to a request or to excise closed or confidential information, and the availability and workload of staff who can respond to the request. However, this office also has said in a previous opinion, a "two-week delay in providing one record is an unreasonable delay".

Ms. Hendrickson e-mailed her records request to the Board's Board Office Manager/Billing Coordinator on November 3, 2021. The minutes were e-mailed to Ms. Hendrickson on December 13, 2021. The Board provided no explanation for the delay. While it does not appear the Board intentionally delayed responding to the request, waiting over a month to provide minutes is an unreasonable delay absent extenuating circumstances.

CONCLUSION

1. The Board provided proper notice of its November 1, 2021, special meeting in compliance with N.D.C.C. § 44-04-20.

2. The Board failed to provide the requested record within a reasonable time.

STEPS NEEDED TO REMEDY VIOLATION

The requested records were ultimately provided, so no further action is necessary.

Drew H. Wrigley
Attorney General