North Dakota

Although the law does not specifically say that electronic records are covered by the open records law, case law and attorney general opinions have found that computerized information is covered by the law. Some problems with the law center around exemptions for software. Using this exemption, agencies may prevent reporters from getting certain types of databases or documentation necessary to interpret databases. In addition, a 1999 law allowed additional fees for searching for records.

The law. The Open Records Statute provides that unless exempt by law, "all records of a public entity are public records, open and accessible for inspection during reasonable office hours." N.D. Cent. Code § 44- 04-18 (1998). "Records" are defined as "recorded information of any kind, regardless of the physical form or characteristic by which the information is stored, recorded or reproduced." N.D. Cent. Code § 44-04-17.1.

Computer programs, or components thereof, contracted for, developed or acquired by the state or a state agency are exempt. § 44-04-18.5. The law exempts trade secrets and defines them to include "a computer software program and components of a computer software program which are subject to copyright or patent . . . supplied to any state agency . . . which is the subject of efforts by the supplying person or organization to maintain its secrecy and that may derive independent economic value . . . from not being generally known to . . . other persons or organizations that might obtain economic value from [their] disclosure or use." § 44-04-18.4(2). A public entity may enter into agreements for the sale, licensing and distribution of its licensed, patented or copyrighted computer programs. § 44-04-18.5.

Upon request for a copy of specific public records, an agency shall furnish the requester one copy of the record requested. The request need not be stated in writing or in person. § 44-04- 18(1). Agencies are not required to create or compile records that do not exist. Access to an electronically stored record must be provided at the requester’s option in either a printed document or in any other available medium. A computer file does not constitute an "available medium" if the agency is unable to redact any closed or confidential information contained in the file. A public entity is not required to provide an electronically stored record in a different format, structure or organization. The public entity is not required to provide the requester with access to a computer terminal. § 44-04-18(3). State-level public agencies may establish procedures for providing access from an outside location to any computer database or electronically filed or maintained information it possesses. § 44-04-18(4).

Cases & opinions. "The request for e-mails received and sent by the mayor and other city commissioners in an electronic format is a request for specific records that the City is required to provide the requester. N.D. Cent. Code § 44-04-18(2), (3). It is my opinion that the City’s denial of the electronically stored e-mails in an electronic format on grounds the request was not specific and was overbroad violated § 44-04-18.[ . . . ] The City may charge $25 per hour, after the first hour, for locating the e-mails requested by Mr. Grettum after the e-mails on the backup tape are transferred to the server. In addition, the City may charge its actual costs for making a copy of the e-mails." N.D. Att’y Gen. Op. 2003-O-04 (Feb. 25, 2003)

A park district argued that separating exempt or confidential information in its computerized membership records from any information that must be open to the public would require the creation of a new record. "This argument contradicts several sections in N.D. Cent. Code § 44-04. A public entity may not deny a request for an open record because the record also contains confidential or closed information; the entity is required to withhold the confidential or closed information and disclose the rest of the record." § 44-04-18.10. N.D. Att’y Gen. Op. 98-O-22 (Oct. 16, 1998)

Fees. An agency processing a request for documents may charge a reasonable fee for making and mailing the copy, or both. An agency may require prepayment of fees. The agency may subcontract its document copying operations to a public or private entity and fees are to be paid to that entity. Fees are limited to the actual costs of making or mailing a copy of a record or both, including labor, materials, postage and equipment, but excluding any search or redaction costs. N.D. Cent. Code § 44-04-18. The attorney general recommended that a city official could not charge a fee for inspection of records during reasonable office hours. N.D. Op. Att’y Gen. 2 (Jan. 20, 1982).

In 1999 an new fee provision was added: "An entity may impose a fee not exceeding twenty-five dollars per hour per request, excluding the initial hour, for locating records if locating the records requires more than one hour. . . ." § 44-04-18(2)

Software. Software may, in some cases, be withheld under the "trade secret" exemption, which includes: "A computer software program and components of a computer software program which are subject to a copyright or a patent, and any formula, pattern, compilation, program, device, method, technique, or process supplied to any state agency, institution, department, or board which is the subject of efforts by the supplying person or organization to maintain its secrecy and that may derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons or organizations that might obtain economic value from its disclosure or use." § 44-04-18(4)

Resources. North Dakota Attorney General Opinions