Can a North Dakota township refuse an open-records request by pointing to a lawsuit that has already been decided and not appealed?

Official title

DENIAL OF RECORDS IS IMPROPER IF COURT ACTION IS NOT ACTIVE FOR FURTHER LITIGATION

Plain-English summary

Grand Prairie Agriculture sued Pelican Township after the Township denied a permit for a hog feeding operation. The North Dakota Supreme Court called the Township's decision "arbitrary and invalid" and remanded. On remand, the Township adopted new zoning ordinances and denied the petition again. Grand Prairie then asked the Township for records: meeting minutes, communications, ordinance materials, legal-fee agreements. The Township refused, citing the same lawsuit and § 44-04-18(6), which lets a public entity route a records request from a litigant through formal discovery instead.

The AG said the Township was wrong. The Supreme Court's final judgment had entered, no one had appealed, and there was no remand to a different court. The case was effectively over for substantive purposes. Without an active discovery period, § 44-04-18(6) does not give a public entity the power to refuse open records. The Township had to go back, review the request, and produce the responsive records.

What this means for you

If you are a litigant or former litigant requesting records from a public entity

The opinion holds that § 44-04-18(6) lets a public entity route a litigant's records request through formal discovery only when "applicable discovery rules" are available. The opinion concludes that once final judgment has entered and no appeal is pending, no discovery rules are available, and the request must be evaluated under the ordinary open-records standard.

If you are counsel for a public entity considering invoking § 44-04-18(6)

The opinion treats the exception as limited to "records that are privileged under applicable discovery rules." The opinion notes that the legislative purpose, drawn from this office's 1997 testimony, was to put public entities on equal footing with private litigants for privilege purposes, not to bar access after a case ends.

If you serve on a township board that received a records request from a recent litigant

The opinion ordered Pelican Township to review Grand Prairie's April 19, 2021 request and provide responsive records. The opinion notes that failure to take corrective measures within seven days results in mandatory costs, disbursements, and reasonable attorney fees under § 44-04-21.2 if the requester prevails in a civil action, and may result in personal liability under § 44-04-21.1(2).

If you are a citizen not party to any litigation

The opinion treats § 44-04-18(6) as keyed to whether the requester is a party (or an agent of a party) to an action involving the public entity. The opinion does not modify the rule that a non-litigant citizen's identity and purpose are irrelevant under § 44-04-18.

Background and statutory framework

North Dakota's open-records statute, N.D.C.C. § 44-04-18, runs on a strong-presumption-of-openness model: every record of a public entity is public, and the requester's identity and purpose normally do not matter. The exception relevant here is subsection (6), which the legislature added in 1997 to protect public entities from a workaround. The concern was that a litigant adverse to a public entity could try to bypass the formal civil discovery process (which has rules about relevance, privilege, work-product protection, and so on) by simply filing an open-records request and getting the same documents that way.

§ 44-04-18(6) addresses that by saying:

Any request under this section for records in the possession of a public entity by a party to a criminal or civil action, adjudicative proceeding as defined in subsection 1 of section 28-32-01, or arbitration in which the public entity is a party, or by an agent of the party, must comply with applicable discovery rules or orders and be made to the attorney representing that entity in the criminal or civil action, adjudicative proceeding, or arbitration. The public entity may deny a request from a party or an agent of a party under this subsection if the request seeks records that are privileged under applicable discovery rules.

Two things follow from that text. First, the requester's identity matters here, even though it normally does not: if the requester is a party (or an agent of a party) to an action involving the public entity, the request goes through the entity's litigation counsel under the discovery rules. Second, the public entity gets to deny only if the request seeks records that are privileged under the applicable discovery rules. The legislative history (a 2002 AG opinion citing Assistant AG Fleming's 2001 testimony) confirms the protection's purpose: putting public entities on equal footing with private litigants, who could refuse to hand over privileged work-product or attorney-client documents in discovery.

The trigger word in § 44-04-18(6) is "applicable discovery rules." If discovery procedures are available, the public entity can route the requester to that process. If they are not (because the case is over and no appeal pending), there are no "applicable discovery rules" to invoke.

The AG worked through the Pelican Township timeline:

• Grand Prairie's appeal: Case No. 36-2019-CV-397.
• North Dakota Supreme Court issued its order February 18, 2021; final judgment entered March 15, 2021.
• Township adopted new ordinances March 12, 2021, then on remand denied the petition again April 16, 2021.
• Grand Prairie filed an open-records request April 19, 2021.
• Township denied April 30, 2021, citing "pending" Case No. 36-2019-CV-397.
• The case had been closed in district court May 19, 2021 (after the denial). N.D.R.App.P. 40 gave Grand Prairie 14 days from entry of judgment to file a petition for rehearing; that window had closed by April 19. No rehearing petition or further appeal followed.

By the time of the records request, the AG concluded, no issues remained for a court to review, no remand had been ordered, neither party had appealed, and no action occurred in the case after entry of the court's final judgment. Without active discovery procedures, § 44-04-18(6) had nothing to grab onto. The Township's denial was contrary to the statute's plain language and legislative history.

The Township also pointed to a separate lawsuit filed March 1, 2021 by Grand Prairie's counsel (on behalf of a different client) seeking a declaratory judgment that the Township's Animal Feeding Operation Ordinance was invalid and unenforceable. The AG noted that the Township did not actually raise that lawsuit in its April 30 denial letter, so it could not retroactively backstop the denial with that case. Even if it had, the AG's reasoning suggests the analysis would still turn on whether discovery was active in that case at the time of the request.

The remedy was specific: review Grand Prairie's April 19, 2021 request and produce the responsive records. The standard seven-day corrective-action warning followed: failure to act within seven days lets the requester sue under N.D.C.C. § 44-04-21.2 with mandatory costs, disbursements, and reasonable attorney fees on the line, plus possible personal liability under § 44-04-21.1(2).

Common questions

Q: Can a public entity always invoke § 44-04-18(6) just because there is a related lawsuit?
A: No. The opinion makes clear that "applicable discovery rules" must actually be available. A case that has gone to final judgment without an appeal does not have applicable discovery rules. Neither does a case where the discovery deadline has passed. The exception is narrow.

Q: What if a different lawsuit exists, even if the public entity did not cite it?
A: The AG's opinion suggests the entity must actually invoke the exception in writing for it to count, and the entity has to identify which case is supposedly active. Here the Township mentioned Case No. 36-2019-CV-397 in the denial but not the second declaratory-judgment lawsuit. The AG declined to retroactively credit the second lawsuit as a basis for the denial.

Q: Does this mean a litigant can use open-records to bypass discovery while a case is active?
A: No. While discovery is active, § 44-04-18(6) does its job: the litigant must go through the entity's lawyer and follow the discovery rules. The exception is meant to put public entities on the same footing as private litigants, not to keep records away from the public after a case ends.

Q: What kinds of records does the litigation exception cover?
A: Only records that "are privileged under applicable discovery rules." Things like attorney-client communications and work product can be withheld. Public records that are not privileged stay public, even from a litigant. The Township here lumped all of Grand Prairie's request together as "pending litigation" without analyzing privilege, which was an additional flaw the AG noted in passing.

Q: How fast does the seven-day clock for corrective action run?
A: From the date of issuance of the AG opinion, here October 17, 2022. The corrective measure was for the Township to review the April 19, 2021 request and produce responsive records. Missing the seven-day deadline opens the door to civil suit and personal liability.

Q: What if I am a citizen, not a party to any litigation?
A: § 44-04-18(6) does not apply to you. The litigation exception is keyed to whether the requester (or the requester's agent) is a party to an action involving the public entity. Non-litigant citizens get the regular open-records treatment regardless of any pending case.

Citations

• N.D.C.C. § 44-04-18 (open-records presumption)
• N.D.C.C. § 44-04-18(6) (litigation exception; requester must use applicable discovery rules; entity may deny only privileged records)
• N.D.C.C. § 44-04-21.1, § 44-04-21.1(2) (citizen request for AG opinion; personal liability)
• N.D.C.C. § 44-04-21.2 (civil action; mandatory costs, attorney fees on prevailing requester)
• N.D.C.C. § 32-01-02 ("action" means a proceeding in a court of justice)
• N.D.C.C. § 28-32-01 (administrative adjudicative proceeding definition cross-referenced)
• N.D.R.Civ.P. 3 (commencement of civil action by service of summons)
• N.D.R.Civ.P. 26(b)(3) (work-product protection)
• N.D.R.App.P. 40 (petition for rehearing within 14 days)
• Case No. 36-2019-CV-397 (Grand Prairie's appeal of original Township denial)

Source

• Landing page: https://attorneygeneral.nd.gov/denial-of-records-is-improper-if-court-action-is-not-active-for-further-litigation/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2022/12/2022-O-15.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-15

DATE ISSUED: October 17, 2022
ISSUED TO: Pelican Township

CITIZEN'S REQUEST FOR OPINION

Tyler J. Leverington requested an opinion under N.D.C.C. § 44-04-21.1 from this office asking whether Pelican Township violated N.D.C.C. § 44-04-18 by denying a request for records.

FACTS PRESENTED

Grand Prairie Agriculture, LLP (Grand Prairie) submitted a petition for approval of a proposed animal feeding operation to Pelican Township (Township). The Township denied the proposal after determining it would not comply with township ordinances. Grand Prairie appealed the Township's decision to district court. The district court affirmed the Township's decision to deny the petition.

Grand Prairie appealed the district court's ruling to the North Dakota Supreme Court. The Court's Judgment stated the Township's decision was "arbitrary and invalid" and ordered the Township to reconsider the petition.

On March 12, 2021, the Township adopted seven new zoning ordinances. On April 16, 2021, pursuant to the Court's remand, the Township reconsidered and denied the petition because the proposed animal feeding operation's proximity to the newly adopted zoning districts would not comply with its ordinances. On April 19, 2021, Grand Prairie submitted an open records request to the Township primarily seeking information about the Township's March 12 and April 16 meetings. Specifically, Grand Prairie requested the following records from the Township:

• Any and all communications, including but not limited to any letters, emails, text messages, and social media messages sent by or to any current member or officer of the Pelican Township board or planning or zoning committee as well as the same sent by or to any individual who is not now, but was a member or officer of the Pelican Township board or planning or zoning committee between January 1, 2020 to April 19, 2021, regarding, referencing, or related in any way to animal feeding operations or the formal petition for a determination submitted by Grand Prairie Agriculture, LLP for a proposed hog farm to be located in Pelican township.
• Any and all documents, records, reports, submissions, notes, or other materials provided to or generated by any current member of the Pelican Township board or planning or zoning committee as well as the same provided to or generated by any individual who is not now, but was a member of the Pelican Township board or planning or zoning committee at any time between January 1, 2020 to April 19, 2021 regarding, referencing, or related in any way to animal feeding operations or the formal petition for a determination submitted by Grand Prairie Agriculture, LLP for a proposed hog farm to be located in Pelican township.
• Any and all meeting notices, meeting minutes, or meeting notes associated with or related to the March 12, 2021, and April 16, 2021, meeting of the Pelican Township board, planning, or zoning committee.
• Any and all communications, hand-outs, pamphlets, information, reports, or studies that were presented to or considered by the Pelican Township board and/or the planning and zoning commission in adopting the new zoning districts and determining locations.
• Any and all communications, hand-outs, pamphlets, information, reports, or studies that were presented to or considered by the Pelican Township board and/or the planning and zoning commission in reaching its determination at the April 16, 2021 meeting that the animal feeding operation proposed by Grand Prairie Agriculture, LLP would not comply with the Pelican Township zoning regulations.
• Any and all agreements the Township has with Scott Carlson or Farmers' Legal Action Group, Inc.
• Any and all bills the Township has received from Scott Carlson or Farmers' Legal Action Group, Inc.
• Any and all agreements with any individual or entity relating in any way to the payment of the Township's legal fees.
• A comprehensive set of currently enacted ordinances for Pelican Township.
• The dates of the last three (3) elections of Pelican Township board members.

On April 30, 2021, the Township denied Grand Prairie's request stating it would not "produce any information pursuant to the open records request" at this time. The Township's denial cited N.D.C.C. § 44-04-18(6) and "pending" Case No. 36-2019-CV-397. The Township said it would respond if Grand Prairie intended to "engage in a formal discovery process, or if Grand Prairie ceases litigation over its petition."

ISSUE

Whether Pelican Township violated N.D.C.C. § 44-04-18 by denying a request for records.

ANALYSIS

Except as otherwise specifically provided by law, all records of a public entity are public records, and the identity of the requester and purpose of the request are irrelevant. However, identity and purpose become relevant for open records purposes when a party involved in active litigation tries to circumvent the formal civil discovery process by seeking records from a public entity through an open records request. Specifically, the law provides:

Any request under this section for records in the possession of a public entity by a party to a criminal or civil action, adjudicative proceeding as defined in subsection 1 of section 28-32-01, or arbitration in which the public entity is a party, or by an agent of the party, must comply with applicable discovery rules or orders and be made to the attorney representing that entity in the criminal or civil action, adjudicative proceeding, or arbitration. The public entity may deny a request from a party or an agent of a party under this subsection if the request seeks records that are privileged under applicable discovery rules.

If the requester is a party, or an agent of a party, to an action, the requester "must follow the rules of discovery in order to obtain records related to the lawsuit."

Previous opinions have explained "the legal discovery process is the exclusive method of compelling a public entity to provide records to its adversary in a pending . . . civil action . . . ." The legislative intent of this statute is to put state agencies on equal footing with private litigants. Prior to 1997, a requester could obtain records that would be privileged under North Dakota Rules of Civil Procedure Rule 26(b)(3) in possession of a private litigant. In 1997, the Legislature enacted N.D.C.C. § 44-04-18(5) (the current N.D.C.C. § 44-04-18(6)). According to 1997 legislative testimony by this office, the last sentence in this subsection was added, at our request, to clarify "that a public entity can deny a request for records from a party to litigation involving the public entity if the records are privileged."

Additionally, "[r]ather than simply state that privileged documents are not subject to mandatory disclosure under N.D.C.C. § 44-04-18, the plain language of subsection 5 instead requires that the request comply with applicable discovery rules." "This prevents a party in an action or proceeding against a public entity from burdening the public entity and its litigation attorney with voluminous requests for records that may not be relevant to the issues in the pending action or proceeding." The statute "authorizes a public entity to rely on legitimate discovery objections to deny a request for records under N.D.C.C. § 44-04-18 from an adversary or agent of an adversary in a pending criminal or civil action or adversarial administrative proceeding." Currently, subsection 6 of N.D.C.C. § 44-04-18 provides protection only for "records that are privileged under applicable discovery rules" and allows a public entity to deny a request "if the request seeks records that are privileged under applicable discovery rules." If there are no applicable discovery rules at the time an open records request is made by a party to a civil action, the request cannot be denied under this statute. After any applicable discovery periods end, open records are available to anyone requesting them.

Here, the Township relied on Case No. 36-2019-CV-397 in its April 30th denial of records. The Court issued its Order on February 18, 2021, and final Judgment was entered in that case on March 15, 2021. Grand Prairie sent its records request on April 19, 2021. The requested records included meeting notices, minutes, or notes, communications, hand-outs, pamphlets, information, reports, or studies presented in open meetings to the Township board, comprehensive set of currently enacted Township ordinances, and the dates of the last three Township elections of board members. The Township wholly denied Grand Prairie's request nine business days later.

At the time Grand Prairie made its request, no issues remained for a court to review in Case No. 36-2019-CV-397. No remand was ordered to another court. Neither party had appealed. No action occurred in the case after entry of the Court's final Judgment. Case No. 36-2019-CV-397 was not active for purposes of further litigation. At the time the request was made, and denied, there were no discovery procedures available by which Grand Prairie could access the Township's records. It is patently unfair, and contrary to a plain reading of the statute and its legislative history, for a public entity to deny access to open records on the basis of a case that is open only as an administrative matter, well past any applicable or available discovery processes. Therefore, it is my opinion that the Township improperly denied Grand Prairie's records request.

CONCLUSION

Pelican Township improperly denied a request for records after entry of final judgment of an order when there was no further opportunity for discovery, in violation of N.D.C.C. § 44-04-18(6).

STEPS NEEDED TO REMEDY VIOLATION

The Township must review Grand Prairie's April 19, 2021, record request and provide the responsive records.

While I have every reason to expect Pelican Township will remedy this situation, failure to take the corrective measures described in this opinion within seven days of the date this opinion is issued 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. Failure to take these corrective measures may also result in personal liability for the person or persons responsible for the noncompliance.

Drew H. Wrigley
Attorney General

cc: Tyler Leverington