Can a North Dakota law enforcement agency refuse to release 911 transcripts because they're part of an active criminal investigation?

Plain-English summary

The Forum, a Fargo-based newspaper, requested 911 call recordings (and later transcripts) related to an investigation. The Highway Patrol cited the active investigation exception under N.D.C.C. § 44-04-18.7 to deny the audio request, then deferred the transcript request to State Radio (a division of the Department of Emergency Services). Both agencies ultimately failed to provide the transcript. The Forum filed an AG opinion request.

The AG concluded both agencies violated N.D.C.C. § 44-04-18 by failing to release the transcript. The opinion's broader point is that an agency cannot just cite a general exemption (like "active investigation") and refuse a record outright. It must analyze the specific record and identify the specific basis for withholding. A transcript of a 911 call is a separate record from the audio recording, and the active-investigation analysis must be applied to each separately. The agencies did not do that analysis and so violated the open records law.

What this means for you

Journalists and others requesting 911 records

The opinion holds that a request for a written 911 transcript under N.D.C.C. § 57-40.6-07(4) cannot be denied outright on a blanket "active investigation" basis. The agency must create the transcript and apply the active-criminal-investigative-information analysis to the actual content, with redactions where required, rather than refusing to process the request at all.

Law enforcement records officers

The opinion concludes that a denial based on N.D.C.C. § 44-04-18.7 must identify the specific information being withheld and the basis for that withholding. The opinion treats reflexive denials lacking that record-specific analysis as a violation of N.D.C.C. § 44-04-18. Past opinions cited (N.D.A.G. 2006-O-12, 2004-O-11) hold that "giving inaccurate reason[s] for denying a record violates N.D.C.C. § 44-04-18."

Emergency dispatch agencies (State Radio and similar)

The opinion concludes that 911 audio recordings are exempt under N.D.C.C. § 57-40.6-07(4) but written transcripts of those recordings are not categorically exempt. The statute requires the transcript to be created upon request. State Radio may refer the request to the investigating agency to handle redactions, but the obligation to produce a transcript falls on the public entities collectively, not zero of them. The opinion partially supersedes N.D.A.G. 2014-O-15 on this point.

Public entities passing requests back and forth

The opinion concludes that referring a transcript request from one entity to another, with neither creating the transcript, violates the open records law. Both NDHP and State Radio were responsible for working together to produce the transcript.

Common questions

Q: Are 911 audio recordings public records in North Dakota?
A: Audio recordings of 911 calls are exempt records under N.D.C.C. § 57-40.6-07(4). The opinion holds that members of the public may listen to (but not copy) the audio, and may request a written transcript that the agency must create within a reasonable time.

Q: Can a 911 transcript be withheld if the case is still under investigation?
A: The opinion holds that the agency cannot refuse to create or process the transcript. Specific content within the transcript that meets the active-criminal-investigative-information test in § 44-04-18.7 may be redacted, but the transcript itself must be produced.

Q: What did the opinion treat as the difference between this case and N.D.A.G. 2014-O-15?
A: In 2014, the suspect was still at large and considered armed and dangerous when the request was made. Here, two days had passed, the suspect had been apprehended, and charges had been filed. The 2014 opinion also overlooked the public entity's obligation to provide a redacted transcript under § 57-40.6-07(4); the 2023 opinion supersedes it to that extent.

Q: What is the remedy ordered?
A: NDHP and State Radio must work together to create and provide a redacted 911 transcript to The Forum, and to anyone else requesting it, at no charge. Failure to act within seven days exposes the agencies to mandatory costs, fees, and potential personal liability under N.D.C.C. § 44-04-21.2.

Citations and references

Statutes:

• N.D.C.C. § 44-04-18
• N.D.C.C. § 44-04-18.7

Request and conclusion (from landing page)

August 7, 2023

Request: Whether the North Dakota Highway Patrol and State Radio violated N.D.C.C. § 44-04-18 when they failed to provide a 911 transcript.

Conclusion: The North Dakota Highway Patrol and State Radio violated open records law when each entity failed to provide a 911 transcript to The Forum.

Opinion may be viewed at: 2023-O-02

Source

• Landing page: https://attorneygeneral.nd.gov/north-dakota-highway-patrol-and-state-radio/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2023/08/2023-O-02.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
2023-O0-02
DATE ISSUED: August 7, 2023
ISSUED TO: North Dakota Highway Patrol and State Radio

CITIZEN’S REQUEST FOR OPINION

Forum Communications (The Forum) requested an opinion from this office under
N.D.C.C. § 44-04-21.1, asking whether the North Dakota Highway Patrol and State Radio, a
division of the North Dakota Department of Emergency Services, violated N.D.C.C. § 44-04-18 by
denying The Forum’s requests for transcripts of 911 calls.!

FACTS PRESENTED

On September 19, 2022, April Baumgarten, an investigative journalist for The Forum, requested
phone call recordings of 911 calls from the North Dakota Highway Patrol (NDHP).? Captain
Niewind, on behalf of NDHP, promptly denied her request, stating “[t]he 911 calls are part of our
on-going investigation and can’t be released at this time.’? The next day Ms. Baumgarten requested
a copy of transcripts of the same 911 calls she had requested the day before from the NDHP.*
Captain Niewind referred Ms. Baumgarten to State Radio” because “they would need to provide
[her] any transcripts.’° Captain Niewind further stated that the NDHP had the audio recordings of
the 911 calls, for evidence in an “on-going criminal investigation,” but NDHP was unable to release
them “because of the active investigation.”’ He also referred Ms. Baumgarten to the Foster County
State’s Attorney to inquire about the release of the recording.® Captain Niewind generally cited

! B-mail from Matt Von Pinnon, Editor-in-Chief, The Forum, to Annique M. Lockard, Assistant
Att’y Gen. (Oct. 10, 2022, 5:19 PM).

2 E-mail from April Baumgarten, Investigative Journalist, The Forum, to Captain Bryan J. Niewind,
ND Highway Patrol, Se. Region Commander (Sept. 19, 2022, 5:48 PM).

3 E-mail from Captain Bryan J. Niewind, ND Highway Patrol, Se. Region Commander, to April
Baumgarten, Investigative Journalist, The Forum (Sept. 19, 2022, 9:18 PM).

4 E-mail from April Baumgarten, Investigative Journalist, The Forum, to Captain Bryan J. Niewind,
ND Highway Patrol, Se. Region Commander (Sept. 20, 2022, 9:29 AM).

State Radio is a division of the North Dakota Department of Emergency Services. For more
information see, https://www.des.nd.gov/state-radio-depth (last visited Aug. 1, 2023).

6 E-mail from Captain Bryan J. Niewind, ND Highway Patrol, Se. Region Commander, to April
Baumgarten, Investigative Journalist, The Forum (Sept. 20, 2022, 11:00 AM).

1 Id.

8 Id.

OPEN RECORDS AND MEETINGS OPINION 2023-0-02
August 7, 2023
Page 2

N.D.C.C. § 44-04-18.7, relating to exemptions for criminal intelligence information and criminal
investigative information, in the record denial.’

On September 20, 2022, April Baumgarten requested “a copy of dispatch calls Shannon Brandt
made to 911 on Sept. 17 or Sept. 18 in McHenry” taken by State Radio from the North Dakota
Department of Emergency Services (the Department).!° Eric Jensen, Strategic Communications
Chief for the Department, responded to Ms. Baumgarten’s request the same day asking for
additional information about her request, informing her of potential charges to process her request,
and citing various sections of North Dakota Century Code that may protect parts of the request.'!
Later that day, Matt Von Pinnon, Editor-in-Chief of The Forum, clarified Ms. Baumgarten’s request
to State Radio, stating “[w]hat we’re seeking is written transcripts of any and all 911 calls made
from the City of McHenry area of North Dakota between midnight and 4 a.m. Sunday, Sept. 18”
and that they were “not interested in the identities of people making the calls.”! Mr. Von Pinnon
referred to N.D.C.C. § 57-40.6-07(4), the Department’s statute on emergency audio recordings, in
his request.'? The Department responded “[p]er law enforcement, this is still an active investigation,
so I am not allowed to process transcripts at this time” and cited “[a]ctive criminal intelligence,
criminal investigative information, officer training materials, information that may impact officer
safety § 44-04-18.7, and the work schedule of employees of a law enforcement agency § 44-04-
18.3(3) as a basis for not processing the request.”!

° Id. Captain Niewind cites “NDCC 44-18-18.7” in his response, N.D.C.C. § 44-04-18.7 is the
section that covers denials for active criminal investigations.

!0 R-mail from April Baumgarten, Investigative Journalist, The Forum, to ND Dept. of Emergency
Servs. (Sept. 20, 2022, 11:21 AM).

'! E-mail from Eric W. Jensen, Strategic Communications Chief, ND Dep’t. of Emergency Servs.,
to April Baumgarten, Investigative Journalist, The Forum (Sept. 20, 2022, 12:54 PM).

'2 E-mail from Matt Von Pinnon, Editor-in-Chief, The Forum, to Eric W. Jensen, Strategic
Communc’ns Chief, ND Dept. of Emergency Servs. (Sept. 20, 2022, 1:29 PM).

a Td.

'4 B-mail from Eric W. Jensen, Strategic Communc’ns Chief, ND Dept. of Emergency Servs., to
Matt Von Pinnon, Editor-in-Chief, The Forum (Sept. 20, 2022, 1:43 PM). While an opinion was not
requested on the validity of the denial, I caution the Department on its use of broad denials of record
requests, lacking legal citations, that may be too expansive to apply to the particular records request,
and encourage the Department to review the open record materials and past opinions available on
the Attorney General’s website. Specifically, it is not clear what the Department relied on in
denying this request based on “officer training materials, information that may impact officer safety
§ 44-04-18.7, and the work schedule of employees of a law enforcement agency § 44-04-18.3(3).”
Existing opinions from this office have made clear that “giving inaccurate reason[s] for denying a
record violates N.D.C.C. § 44-04-18.” (See N.D.A.G. 2006-O-12; N.D.A.G. 2004-O-11) In a 2006
opinion, a sheriff denied records as exempt because they were part of an open investigation or
“confidential mental health cases.” (See N.D.A.G. 2006-O-12). Ultimately it was determined that
this claim was unfounded, and the Attorney General found the sheriff violated open records law “by

OPEN RECORDS AND MEETINGS OPINION 2023-O-02
August 7, 2023
Page 3

On October 7, 2022, Ms. Baumgarten again requested the 911 call transcripts from NDHP because
“State Radio said the Highway Patrol owns the transcripts and [The Forum] needs [sic] to request
them from [NDHP].”!° Captain Niewind responded the same day stating he would “forward your
request for a transcript for the 911 call to Kara Brinster, Foster County State’s Attorney.”!® In this
third denial e-mail, Captain Niewind stated, “[t]he NDHP does not have a transcript of the 911 call
made.””!7

ISSUE

Whether the North Dakota Highway Patrol and State Radio violated N.D.C.C. § 44-04-18 by failing
to provide a written transcript of audio recordings of 911 calls.

ANALYSIS

“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.”!® "‘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 has been received or prepared for use in connection with public business or
contains information relating to public business.”!? “A public entity that receives a request for a
copy of specific public records "shall furnish the requester one copy of the public records
requested.”””?

Separate requests pertaining to the 911 recordings were made by the Editor-in-Chief of The Forum
and one of The Forum’s investigative reporters asking whether 911 transcripts are public records
that should be provided prior to the completion of a law enforcement investigation and whether in
this instance, it was correct to deny a request for a written transcript. Both requests were made
pursuant to N.D.C.C. § 57-40.6-07(4), which states:

failing to describe valid legal authority for denying the request for receipts of confiscated weapons.”
(See N.D.A.G. 2006-O-12). While there is presently no information that the Department intended to
give an invalid legal reason for the denial, I urge additional caution in the future when responding to
record requests and emphasize the importance of ensuring the facts and legal reasons are clearly
stated in denials.

'S E-mail from April Baumgarten Investigative Journalist, The Forum, to Captain Bryan J. Niewind,
ND Highway Patrol, Se. Region Commander (Oct. 7, 2022, 12:10 PM).

'6 E-mail from Captain Bryan J. Niewind, ND Highway Patrol, Se. Region Commander, to April
Baumgarten, Investigative Journalist, The Forum (Oct. 7, 2022, 12:59 PM).

'8N.D.C.C. § 44-04-18(1).

'INLD.C.C. § 44-04-17.1(16).

20 N.D.C.C. § 44-04-18(2); see N.D.A.G. 2006-O-12.

OPEN RECORDS AND MEETINGS OPINION 2023-O-02
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4. An audio recording of a request for emergency services or of
   a report of an emergency is an exempt record as defined in section
   44-04-17.1. However, upon request, a person may listen to the audio
   recording, but may not copy or record the audio. A person also may
   request a written transcript of the audio recording, which must be
   provided to the person within a reasonable time. The emergency
   services communication system coordinator may refer requests to the
   appropriate investigating agency possessing the recording and shall
   communicate this referral to the requester. The investigating agency
   shall answer requests for the records. If an investigating agency does
   not have possession of the record, the emergency services
   communication system coordinator shall respond to the request for
   the record.”!

Audio recordings specifically “of a request for emergency services” or reports of emergencies are
public records but are exempt under N.D.C.C.§ 57-40.6-07(4).”” Transcript of the audio recordings
also meets the definition of a public record, but N.D.C.C. § 57-40.6-07(4) does not explicitly
exempt the transcript. Notably, the statute requires a transcript to be created upon request, which is
contrary to the general open records law that does not require a public entity to create or compile a
record that does not exist.”?

In order to determine how exemptions apply to a transcript created under N.D.C.C. 57-40.6-07(4), it
is helpful to examine the legislative history. Subsection 4 of Section 57-40.6-07 was added by the
62nd Legislative Assembly in 2011. Sponsors of the bill wanted to prevent the broadcast of
emotional 911 recordings by media outlets.*4 As introduced, House Bill 1156, made the written
transcript of “such an audio recording” exempt.?> However, the exempt designation was removed
by committee amendment and the bill ultimately passed in the form we have now.”°

21 N.D.C.C. § 57-40.6-07(4) (emphasis added).

6 Ted.

3 N.D.C.C. § 44-04-18(4).

*4 “Under the current form the tape is still available to the media for them to listen to and take notes
off but that tragedy that prompted the individual to call 911 is no longer to be rebroadcasted in any
way, shape, or form.” Hearing on H.B. 1156 Before Senate Human Services Comm., 2011 N.D. Leg
(Mar. 8) (Statement of Rep. Porter).

5 HB. 1156, 2011 N.D. Leg. Introduced. “‘[E]xempt’ record means all or part of a record that is
neither required by law to be open to the public, nor is confidential, but may be open in the
discretion of the public entity.” N.D.C.C. 44-04-17.1(5).

26 H.B. 1156, Amendment adopted Jan. 31, 2011 (HJ 305) and Engrossed H.B. 1156 passed 78-16,
Feb. 2, 2011 (HJ 332).

OPEN RECORDS AND MEETINGS OPINION 2023-0-02
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Testifying in support of the bill, Representative Todd Porter explained the intent of the committee
amendment was for a copy of the audio recording to be exempt, while the recording itself was open
to review.”’ Representative Lawrence Klemin, the bill’s prime sponsor, stated in his testimony to
the Senate Human Services Committee, “Subsection 4 of Section 2 is new and provides that an
audio recording of a 911 call is an exempt record. However, on request a person may listen to the
audio recording but may not copy or record it. The person may also obtain a written transcript of the
audio recording on request.””® In the same hearing, bill proponent Mike Dannenfelzer, testified,
“the bill] now permits someone to request to listen to the call, but prohibits them from recording or
copying the audio. The bill also allows the release of a transcript of the audio recording.””? He also
testified “[t]he point here is that these records are currently very much open with little protection for
a victim in existing law. Even providing the ability to edit that which is subject to current open
records exemptions, it is not possible to remove all that may connect to that exemption. A transcript
provides a better way and is offered within HB 1156.3° The Legislature provided two ways to
provide access to the 911 recording: either arrange to listen to the recording or request a transcript
of the recording for review. The legislative history makes it clear that the Legislature intended that a
isansonipt be provided — but that if exempt or confidential information was present, it could be
redacted?!

Here, The Forum’s requests for the transcript were not addressed by either the NDHP or State
Radio. Instead, both denied the requests and cited the exemption for active criminal intelligence and
investigative information.* Such an exemption was recognized by this office in a 2014 opinion.?
In that instance, law enforcement denied a request for a 911 call transcript, declaring it exempt as
active criminal intelligence and investigative information. This office found the denial proper
because the recording contained details necessary to apprehend the suspect fugitive at the time of

27 “(Inder the current form the tape is still available to the media for them to listen to and take notes
off but that tragedy that prompted the individual to call 911 is no longer to be rebroadcasted in any
way, shape, or form.” Hearing on H.B. 1156 Before Senate Human Services Comm., 2011 N.D. Leg
(Mar. 8) (Statement of Rep. Porter).

8 Hearing on H.B. 1156 Before Senate Human Services Comm., 2011 N.D. Leg (Mar. 8)
(Statement of Rep. Klemin).

29 Hearing on H.B. 1156 Before House Political Subdivisions Comm., 2011 N.D. Leg (Jan. 20)
(Statement of Mike Dannenfelzer).

30 Hearing on H.B. 1156 Before Senate Human Services Comm., 2011 N.D. Leg (Mar. 8)
(Testimony of Mike Dannenfelzer).

31 Id.

32 E-mail from Eric W. Jensen, Strategic Communc’ns Chief, ND Dept. of Emergency Serves., to
Matt Von Pinnon, Editor-in-Chief, The Forum (Sept. 20, 2022, 1:43 PM). E-mail from Captain
Bryan J. Niewind, ND Highway Patrol, Se. Region Commander, to April Baumgarten, Investigative
Journalist, The Forum (Sept. 20, 2022, 11:00 AM)

33 N.D.A.G. 2014-O-15.

OPEN RECORDS AND MEETINGS OPINION 2023-O0-02
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the request** A record request can be denied for active criminal intelligence and criminal
investigative information only when a case is considered active.

Under open record law, criminal intelligence information is active as long as a reasonable good-
faith belief exists that it will lead to detection of ongoing or reasonably anticipated criminal
activities.>> Criminal investigative information is active as long as there exists a reasonable good-
faith anticipation of securing an arrest or prosecution in the foreseeable future.*° At the time of the
request and denial in the 2014 opinion, the agency was “actively investigating a homicide and the
suspect had yet to be arrested and was considered armed and dangerous.”?’

According to the legislative history of Subsection 4 of Section 57-04.6-07, this scenario was
presented by one of the bill’s proponents.** Mike Dannenfelzer testified to the House Committee
“lif it needs to be used to help identify a suspect and be played over the air it could be used for that
purpose even though it is not publicly released.’°? The decision to disclose exempt records “lies
within the discretion of the Department, subject to restrictions in other statutes or federal law.””°
Consistent with past opinions issued by this office, “[t]he exemption for criminal investigative
information is temporary. Once the investigation is no longer active, the information must be
disclosed unless disclosure is restricted under another statute.’

The Forum’s request in this current instance is distinguishable from the 2014 opinion. In that
opinion a request was made for a 911 transcript of a shooting that had occurred the day before. The
2014 denial stated, “. . . suspect is on the loose, not yet apprehended, and is to be considered armed

34 Td,

35 «Criminal intelligence information’ means information with respect to an identifiable person or
group of persons collected by a criminal justice agency in an effort to anticipate, prevent, or monitor
possible criminal activity. Criminal intelligence information must be considered ‘active’ as long as
it is related to intelligence gathering conducted with a reasonable good-faith belief it will lead to
detection of ongoing or reasonably anticipated criminal activities.” N.D.C.C. § 44-04-18.7(3).

36 «Criminal investigative information’ means information with respect to an identifiable person or
group of persons compiled by a criminal justice agency in the course of conducting a criminal
investigation of a specific act or omission, including information derived from laboratory tests,
reports of investigators or informants, or any type of surveillance. Criminal investigative
information must be considered ‘active’ as long as it is related to an ongoing investigation that is
continuing with a reasonable good-faith anticipation of securing an arrest or prosecution in the
foreseeable future.” N.D.C.C. § 44-04-18.7(4).

37.N.D.A.G. 2014-0-15.

38 Hearing on H.B. 1156 Before House Political Subdivisions Comm., 2011 N.D. Leg (Jan. 20)
(Statement of Mike Dannenfelzer).

3° Td.

40 N.D.A.G. 2005-O-13.

41 N_D.A.G. 2005-O-13; citing N.D.A.G. 98-F-09.

OPEN RECORDS AND MEETINGS OPINION 2023-O-02
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and dangerous .. . .“” This situation is different in the matter now under consideration. At the time
of the request at issue in this opinion, two days had passed, the suspect had been apprehended, and
criminal charges had been filed. Therefore, the active components of criminal intelligence
information and criminal investigative information had been met. However, the 2014 opinion
overlooked the public entity’s obligation to provide a redacted transcript under N.D.C.C. § 57-40.6-
07(4) and to that extent, the 2014 opinion is superseded.

It is a clear standard in open records law that if a public entity has requested records, they must
provide the records. There are two exceptions to this standard.? Both North Dakota Information
Technology (NDIT) and State Radio have statutes that allow them to direct requests for records to
the holder of the records or investigating law enforcement agencies. With exceptions, NDIT shall
otherwise “refer a request for access to or inspection of information provided by an agency to that
agency for response.’”“ The emergency services communication system coordinator is permitted to
“refer requests to the appropriate investigating agency possessing the recording and shall
communicate this referral to the requester.’“> Pursuant to their statute, the Department has no duty
to ask law enforcement about the status of cases. The Department may refer the requester to the
appropriate investigating agency and the Department’s involvement in the request ends there.
Specific to the Department, they have the discretion to refer requests to law enforcement agencies *°
eliminating the difficult, if not impossible, task of the Department determining whether a case is
active. If that occurs, “[t]he investigating agency shall answer requests for the records. If an
investigating agency does not have possession of the record, the emergency services communication
system coordinator shall respond to the request for the record.”“”7 The Department did not exercise
that discretion in this request.

A plain reading of Subsection 4 of Section 57-40.6-07, N.D.C.C. shows that while audio recordings
are exempt; listening to a recording and requesting a transcript of the recording is not explicitly
exempt.’* This plain language interpretation is consistent with the legislative history of this
subsection. A plain reading of the statute and its legislative history make clear that while copies of
the audio recordings of calls for emergency services are exempt records, subject to authorized
disclosure and review of legally allowable redactions, listening to the call or requesting a transcript
are permissible.

42. N.D.A.G. 2014-O-15.

43.N.D.C.C. § 54-59-16; N.D.C.C. § 57-40.6-07(4).

4 ND.C.C. § 54-59-16.

45.N.D.C.C. § 57-40.6-07(4).

46 Tq.

47 Td.

489011 N.D. Sess. Laws ch. 478, § 2, see also N.D.A.G. 2014-O-15.

OPEN RECORDS AND MEETINGS OPINION 2023-0-02
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It is my opinion that once The Forum requested a transcript, the NDHP or State Radio was required
by N.D.C.C. § 57-40.6-07(4) to prepare a transcript “within a reasonable time.” Once created, State
Radio may refer to the appropriate investigating agency the responsibility to handle any necessary
redactions and actual release of the record, but the statute instructs that if the investigating agency
“does not have possession of the record, the emergency service communication system coordinator
shall respond to the request for the record.””? The statute anticipates that more than one public entity
may be involved in a request for the recording or a transcript of the recording. Here, NDHP and
State Radio kept referring The Forum to the other entity, with neither entity taking responsibility for
creating and providing the transcript that was requested.°° That course was contrary to open records
law, specifically N.D.C.C. § 57-40.6-07(4), as it needlessly delayed the provision of records that
state law mandates be created and open to the public.

NDHP and State Radio were obligated by statute to work together to create a transcript of the 911
call.°! Because the transcript is a public record, it may be reviewed for exempt or confidential
information.°? Because neither entity created a transcript, the response by each entities was
premature. As such, it is my opinion that both failed to provide a sufficient reason to deny an open
record.°?

CONCLUSION

The North Dakota Highway Patrol and State Radio violated the open records law when each entity
failed to provide a redacted written transcript of the 911 calls requested by The Forum.

9 N.D.C.C. § 57-40.6-07(4). State Radio has the physical recordings of many 911 calls because it
makes the recordings of the 911 calls on behalf of law enforcement entities across the state,
including Highway Patrol. Although the law allows them to refer to law enforcement to determine if
parts of the record are exempt or confidential, State Radio still has a role to play in fulfilling a
request for the record. State Radio either has to prepare a transcript for the law enforcement agency
to provide to the requester or it can provide the recording to the agency for them to prepare the
transcript. Either way, if a requester asks for a transcript, one must be prepared and provided.

°° E-mail from Eric W. Jensen, Strategic Communc’ns Chief, ND Dept. of Emergency Serves., to
Matt Von Pinnon, Editor-in-Chief, The Forum (Sept. 20, 2022, 1:43 PM). E-mail from Captain
Bryan J. Niewind, ND Highway Patrol, Se. Region Commander to April Baumgarten, Investigative
Journalist, The Forum (Sept. 20, 2022, 11:00 AM).

5! N.D.C.C. § 57-40.6-07(4).

? N.D.C.C. §§ 44-04-18.10, (1), (2). N.D.A.G. 2020-O0-08.

°3 See N.D.A.G. 2006-O-12 (failing to describe valid legal authority for denying the request for
receipts of confiscated weapons); N.D.A.G. 2004-O-11

OPEN RECORDS AND MEETINGS OPINION 2023-0-02
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Page 9

STEPS NEEDED TO REMEDY VIOLATION

The North Dakota Highway Patrol and State Radio must work together to provide The Forum with
transcripts of the requested 911 calls, redacted as allowable by law, free of charge. The transcripts
must also be similarly provided to others who have - or may - request them.

While I have every reason to expect NDHP and State Radio will remedy this violation, 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.

Attorney General

aml/mkk
cc: Matt Von Pinnon via email