How long can a North Dakota city take to respond to a public records request before it's considered an unreasonable delay?

Open Records Opinion 2023-O-04: Fargo unreasonably delayed records, failed to explain why

Plain-English summary

Christopher Coen filed two records requests with the City of Fargo on February 17, 2022, asking for documents related to the Fargo Police Advisory and Oversight Board ahead of a scheduled March 7 city commission vote. Fargo acknowledged the requests the next day, then went silent for almost four weeks before finally sending 59 pages on March 15. The vote had already happened. Coen asked the Attorney General to find that Fargo violated North Dakota's open records law. The AG agreed. North Dakota requires public entities to respond to records requests within a "reasonable time," which the AG has interpreted to mean hours or days, not weeks. The delay here was unreasonable, made worse by Fargo's failure to keep Coen informed. No corrective steps were needed because Coen had already received the records.

What this means for you

If you requested records from a North Dakota public entity and waited weeks for a response

The opinion holds that the reasonable-time standard in N.D.C.C. § 44-04-18 is "measured in hours and days, not weeks" in ordinary cases, and that a nearly four-week delay to produce 59 pages of unredacted records was unreasonable here. It also holds that N.D.C.C. § 44-04-18(8) independently required the City to either provide the records or explain the delay during the response window, and that Fargo's silence between its February 18 acknowledgment and its March 11 update did not satisfy that duty.

If you are a records custodian for a North Dakota public entity

The opinion treats clarification of a broad request as an available option that Fargo declined to use, and notes the result, an undirected "comprehensive search," contributed to the delay. The opinion also reiterates that ongoing communication with the requester is "imperative when there will be a delay," citing prior opinions to the same effect.

If you are weighing whether to file an AG opinion request

The opinion was issued under N.D.C.C. § 44-04-21.1, the citizen-request mechanism. The AG found a violation here even though Fargo had already produced the records by the time the opinion issued, so no further corrective measures were required.

Background and statutory framework

North Dakota's commitment to public records access starts at the state constitution. N.D. Const. art. XI, § 6 makes public records open to inspection. The statutory framework is in N.D.C.C. § 44-04-18, which requires public entities to give access to or copies of public records.

Subsection (2) requires public entities to provide records "in a reasonable amount of time." Subsection (8) requires that within a reasonable time, the entity must "either provide the records or explain why the records are not being provided." Subsection (3) treats unreasonable delay as a violation equivalent to outright denial.

The Attorney General gets requests for opinions under N.D.C.C. § 44-04-21.1. That's the same statute Coen used here. The Attorney General's open records opinions don't have the force of court precedent, but they are highly persuasive in litigation and are how the AG enforces the statute.

Prior AG opinions cited and applied here include:

• N.D.A.G. 2021-O-09 (three-week delay to produce 334 records unreasonable; lack of communication considered)
• N.D.A.G. 2014-O-06 (Industrial Commission delay; custodian acknowledged he should have explained)
• N.D.A.G. 2013-O-15, 2013-O-17 (general timeliness rules)
• N.D.A.G. 2007-O-06, 2007-O-11, 2004-O-05, 2004-O-07, 2002-O-06 (foundational hours-or-days rule)

The opinion synthesized those into a tight rule: reasonable response is hours or days; weeks generally aren't; when delay is unavoidable, the entity must communicate.

What the AG concluded

The AG found that Fargo's response violated N.D.C.C. § 44-04-18 in two related ways:

1. The 26-day wait to deliver 59 pages was unreasonable. Even allowing that broad requests can take longer, this was a small-volume response. The AG compared it to N.D.A.G. 2021-O-09, where a three-week delay for 334 records was also unreasonable. Producing fewer records over a longer time made the violation clearer.

2. The silence during the delay made the violation worse. Fargo sent an initial acknowledgment on February 18, then nothing until March 11. Subsection (8) requires the entity to "either provide the records or explain why the records are not being provided." Saying nothing for 24 days satisfied neither prong.

The AG also addressed Fargo's argument that it was juggling multiple Coen requests. The opinion treated that as relevant context but not exculpatory. If the search would take time, Fargo should have said so.

No corrective steps were ordered. Coen had already received all responsive records. The opinion serves as a finding for the public record and a guide for future practice.

Common questions

Did the AG order Fargo to pay damages or fines?

No. AG open records opinions don't impose damages directly. Subsection (3) of § 44-04-18 treats unreasonable delay as a violation; a person harmed by the violation could pursue civil remedies in court, but that's separate from the AG's finding.

Is there a hard deadline for response under North Dakota law?

No fixed-number-of-days deadline. Section 44-04-18 uses "reasonable time." This opinion confirms that's measured in hours and days, not weeks, and that whether a particular delay is reasonable depends on volume, complexity, and communication.

Can a public entity ask me to narrow my request?

Yes, and the AG explicitly suggested Fargo should have done that here. If a request is broad, the entity may contact the requester for clarification. That request for clarification itself can preserve reasonable response time.

What if I'm asking for records that need redaction?

The opinion noted that delay can be reasonable when records require redaction of closed or confidential information. None of Coen's records needed redaction, which made the four-week delay harder to justify.

Does this apply to school boards, county commissions, and state agencies?

Yes. N.D.C.C. § 44-04-18 covers public entities generally, not just cities. The same hours-or-days timeline and the same duty to communicate apply.

What should I do if I'm in this situation?

If you've waited more than a week without explanation, send a follow-up email asking for status. If still no response, request an opinion from the AG under N.D.C.C. § 44-04-21.1. The process is straightforward and free.

Citations

• N.D.C.C. § 44-04-18 (open records right of access)
• N.D.C.C. § 44-04-18(2) (reasonable time for response)
• N.D.C.C. § 44-04-18(3) (delay as violation)
• N.D.C.C. § 44-04-18(8) (duty to provide records or explain)
• N.D.C.C. § 44-04-21.1 (Attorney General opinion request mechanism)
• N.D. Const. art. XI, § 6 (constitutional open records guarantee)
• N.D.A.G. 2021-O-09 (three-week delay unreasonable, lack of communication considered)
• N.D.A.G. 2014-O-06 (Industrial Commission delay)
• N.D.A.G. 2013-O-15, 2013-O-17 (timeliness rules)
• N.D.A.G. 2007-O-06, 2007-O-11 (delay reasonableness factors)
• N.D.A.G. 2004-O-05, 2004-O-07 (hours-or-days rule)
• N.D.A.G. 2002-O-06 (hours-or-days rule)

Source

• Landing page: https://attorneygeneral.nd.gov/the-city-of-fargo-unreasonably-delayed-the-release-of-requested-records/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2023/09/2023-O-04.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
2023-O-04

DATE ISSUED: September 28, 2023
ISSUED TO: City of Fargo

CITIZEN'S REQUEST FOR OPINION

Christopher Coen requested an opinion from this office under N.D.C.C. § 44-04-21.1 regarding whether the City of Fargo (Fargo) violated N.D.C.C. § 44-04-18 by unreasonably delaying the release of requested records.

FACTS PRESENTED

On February 17, 2022, Mr. Coen made two open record requests to Fargo for records related to the Fargo Police Advisory and Oversight Board. His first letter requested records "that define terms used in the proposed ordinance, including but not limited to the terms: 'community,' 'community relations,' 'police relations,' 'community representatives,' 'community perspective,' and 'community impacts.'" The second letter requested, "letters, emails, texts and/or any other communication documents" between the Fargo city attorney, assistant city attorneys, city attorney staff, and any other parties who were included in the creation of Fargo Police Advisory and Oversight Board. The date range of the records requested was between April 1, 2021, and November 30, 2021.

Fargo's Director of Communications and Government Affairs, Gregg Schildberger, sent a confirmation email acknowledging the request to Mr. Coen the following day, February 18, 2022. Next, Mr. Schildberger contacted the relevant Fargo departments and began processing Mr. Coen's request. On March 11, 2022, after determining search parameters, Mr. Schildberger emailed Mr. Coen and advised Mr. Coen that a response was anticipated the following week. On March 15, 2022, all documents determined to be responsive to Mr. Coen's requests were provided, with none of the records being denied on any legal basis. On March 14, 2022, Mr. Coen requested an opinion from this office regarding the timeliness of Fargo's response, specifically noting his desire to have the records before the March 7, 2022, Fargo City Commission vote concerning the Fargo Police Advisory and Oversight Board.

ISSUE

Whether Fargo responded to Mr. Coen's record request within a reasonable time.

ANALYSIS

North Dakota has a long tradition of providing access to public records. Providing access to, or copies of, public records is part of doing business as a public entity. If a copy of a specific public record is requested, a public entity must provide the records or explain why the records are not being provided within a reasonable time. The open records law is violated when a person's right to review a copy of a record that is not exempt or confidential is denied or unreasonably delayed. A delay may be reasonable if "the request was for a large number of records, where closed or confidential information had to be excised, or where other responsibilities of the public entity demanded immediate attention." Records are not required to be on hand, but response to the public request is expected within a matter of hours or days and not weeks. If a request is unclear, a public entity may request clarification from the requester.

The requests made by Mr. Coen were broad in nature, pertained to an eight-month timeframe, and included various city personnel who may be in different departments. Rather than ask Mr. Coen to narrow or clarify his request, Fargo admits that it "determined to undergo a comprehensive search for the records requested by Mr. Coen." Fargo spent significant time to determine all persons who may possess the responsive documents before they started to locate the records. Ultimately, it took 26 days to provide 59 pages of responsive records to the first letter request and of those records, none needed redaction. There were no records responsive to the second letter request.

The nearly four-week delay was exacerbated because Fargo failed to communicate with Mr. Coen to explain the long wait. This failure to communicate regarding the cause of the delay is relevant because N.D.C.C. § 44-04-18(8) requires entities to "either provide the records or explain why the records are not being provided" within a reasonable time. Records provided by Fargo show, aside from initial receipt confirmation, no communication or updates were provided to Mr. Coen until March 11, 2022, a span of over nearly four weeks. Explaining to Mr. Coen the reason for his delay may have mitigated the situation, encouraged him to narrow his request, or perhaps altogether avoided his request for an opinion from this office.

Consistent with past opinions issued by this office, communication with a requester is imperative when there will be a delay in providing responsive records. When Fargo decided to undertake a comprehensive records search Fargo should have contacted Mr. Coen to inform him of the status of his request. The facts of this situation echo a 2021 opinion from this office that found a three-week delay to provide 334 records, with no explanation to the requester, was unreasonable. I determine that a delay of nearly four weeks to produce just 59 records is likewise unreasonable.

CONCLUSION

Fargo ran afoul of the open records laws by not providing requested records within a reasonable time and failing to give the requester an explanation for the nearly four-week delay.

STEPS NEEDED TO REMEDY VIOLATION

Mr. Coen has received all requested records. Therefore, there are no further corrective measures required.

Drew H. Wrigley
Attorney General

cc: Christopher Coen, via e-mail