§ 44-04-18 — Access to public records - Electronically stored information

North Dakota § 44-04-18

• Jurisdiction: North Dakota
• Title 44: Offices and Officers
• Ch. 44-04: Duties, Records, and Meetings

Text

1. 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. As

used in this subsection, "reasonable office hours" includes all regular office hours of a
public entity. If a public entity does not have regular office hours, the name and
telephone number of a contact person authorized to provide access to the public
entity's records must be posted on the door of the office of the public entity, if any.
Otherwise, the information regarding the contact person must be filed with the
secretary of state for state-level entities, for public entities defined in subdivision c of
subsection 13 of section 44-04-17.1, the city auditor or designee of the city for
city-level entities, or the county auditor or designee of the county for other entities.
2. Upon request for a copy of specific public records, any entity subject to subsection 1
shall furnish the requester one copy of the public records requested. An initial request
need not be made in person or in writing, and the copy must be mailed upon request.
A public entity may require written clarification of the request to determine what
records are being requested, but may not ask for the motive or reason for requesting
the records or for the identity of the person requesting public records. A public entity
may charge up to twenty-five cents per impression of a paper copy. As used in this
section, "paper copy" means a one-sided or two-sided duplicated copy of a size not
more than eight and one-half by fourteen inches [19.05 by 35.56 centimeters]. For any
copy of a record that is not a paper copy as defined in this section, the public entity
may charge a reasonable fee for making the copy. As used in this section, "reasonable
fee" means the actual cost to the public entity of making the copy, including labor,
materials, and equipment. The entity may charge for the actual cost of postage to mail
a copy of a record. An entity may require payment before locating, redacting, making,
or mailing the copy. The public entity may withhold records pursuant to a request until
such time as a requester provides payment for any outstanding balance for prior
requests. An entity may impose a fee not exceeding twenty-five dollars per hour per
request, excluding the initial hour, for locating records, including electronic records, if
locating the records requires more than one hour. An entity may impose a fee not
exceeding twenty-five dollars per hour per request, excluding the initial hour, for
excising confidential or closed material under section 44-04-18.10 from the records,
including electronic records. If a public entity receives five or more requests from the
same requester within seven days, the public entity may treat the requests as one
request in computing the time it takes to locate and excise the records. If the entity is
not authorized to use the fees to cover the cost of providing or mailing the copy, or
both, or if a copy machine is not readily available, the entity may make arrangements
for the copy to be provided or mailed, or both, by another entity, public or private, and
the requester shall pay the fee to that other entity. This subsection does not apply to
copies of public records for which a different fee is specifically provided by law.
3. Automation of public records must not erode the right of access to those records. As
each public entity increases its use of and dependence on electronic recordkeeping,
each agency must provide reasonable public access to records electronically
maintained and must ensure that exempt or confidential records are not disclosed
except as otherwise permitted by law. A public entity may not enter into a contract for
the creation or maintenance of a public records database if that contract impairs the
ability of the public to inspect or copy the public records of the agency, including public
records online or stored in an electronic recordkeeping system used by the agency. An
electronic copy of a record must be provided upon request at no cost, other than costs
allowed in subsection 2, except if the nature or volume of the public records requested
to be accessed or provided requires extensive use of information technology
resources, the agency may charge no more than the actual cost incurred for the
extensive use of information technology resources incurred by the public entity.
"Extensive" is defined as a request for copies of electronic records which take more
than one hour of information technology resources to produce.
4. Except as provided in this subsection, nothing in this section requires a public entity to
create or compile a record that does not exist. Access to an electronically stored
record under this section, or a copy thereof, must be provided at the requester's option
in either a printed document or through any other available medium. A computer file is

not an available medium if no means exist to separate or prevent the disclosure of any
closed or confidential information contained in that file. Except as reasonably
necessary to reveal the organization of data contained in an electronically stored
record, a public entity is not required to provide an electronically stored record in a
different structure, format, or organization. This section does not require a public entity
to provide a requester with access to a computer terminal or mobile device. A public
entity is not required to provide a copy of a record that is available to the requester on
the public entity's website or on the internet. The public entity shall notify the requester
the record is available online and direct the requester to the website where the record
can be accessed. If the requester does not have reasonable access to the internet due
to lack of computer, lack of internet availability, or inability to use a computer or the
internet, the public entity shall produce paper copies for the requester, but may charge
the applicable fees under this section.
5. A state-level public entity as defined in subdivision a of subsection 13 of section
44-04-17.1 or a political subdivision as defined in subsection 11 of section 44-04-17.1,
may establish procedures for providing access from an outside location to any
computer database or electronically filed or stored information maintained by that
entity. The procedures must address the measures that are necessary to maintain the
confidentiality of information protected by federal or state law. Except for access
provided to another state-level public entity or political subdivision, the state or political
subdivision may charge a reasonable fee for providing that outside access. If the
original information is keyed, entered, provided, compiled, or submitted by any political
subdivision, the fees must be shared by the state and the political subdivision based
on their proportional costs to make the data available.
6. 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.
7. A denial of a request for records made under this section must describe the legal
authority for the denial, or a statement that a record does not exist, and must be in
writing if requested.
8. This section is violated when a person's right to review or receive a copy of a record
that is not exempt or confidential is denied or unreasonably delayed or when a fee is
charged in excess of the amount authorized in subsections 2 and 3.
9. It is not an unreasonable delay or a denial of access under this section to withhold
from the public a record that is prepared at the express direction of, and for
presentation to, a governing body until the record is mailed or otherwise provided to a
member of the body or until the next meeting of the body, whichever occurs first. It also
is not an unreasonable delay or a denial of access to withhold from the public a
working paper or preliminary draft until a final draft is completed, the record is
distributed to a member of a governing body or discussed by the body at an open
meeting, or work is discontinued on the draft but no final version has been prepared,
whichever occurs first.
10. For public entities headed by a single individual, it is not an unreasonable delay or a
denial of access to withhold from the public a working paper or preliminary draft until a
final draft is completed, or work is discontinued on the draft but no final version has
been prepared, whichever occurs first. A working paper or preliminary draft shall be
deemed completed if it can reasonably be concluded, upon a good-faith review, that all
substantive work on it has been completed.
11. A disclosure of a requested record under this section is not a waiver of any copyright
held by the public entity in the requested record or of any applicable evidentiary
privilege.

12. A public entity may allow an individual to utilize the individual's own personal devices
for duplication of records and, if so, shall establish reasonable procedures to protect
the integrity of the records as long as the procedures are not used to prevent access
to the records.
13. If repeated requests for records disrupt other essential functions of the public entity,
the public entity may refuse to permit inspection of the records, or provide copies of
the records. A public entity refusing to provide access or copies of public records under
this section shall state in writing the reasons supporting the refusal and provide the
reasoning to the requester. The requester may seek an attorney general's opinion
under section 44-04-21.1, on whether the public entity's decision was proper.