▼

Open Meetings & Records

Show All Answers

1. What do I need to know about the open records and meetings laws?

The terms "record" and "meeting" are defined broadly. To deny public access to a record or meeting, you first have to identify the law that closes the record or meeting. Then you need to explain that law to the person requesting access.

To deny access to records, you must explain to the requester within a reasonable time the legal authority for denying the request.
To deny access to a meeting, you have to explain the topics to be considered and the legal authority for closing a meeting before you can ask the public to leave the meeting room.

2. Is there a certain process that cities need to follow in order to comply with ND open record laws when considering job applications for a vacant position?

If a city is making a hiring decision from three or more applicants who meet the minimum qualifications for a vacant position, the city shall designate three or more applicants as finalists for future consideration before making an offer of employment to fill the position. 

If the city does not wish to consider any applications and descides not to make an offer of employment, the public entity does not need to designate any finalists. (NDCC 44-04-18.27)

3. Are the records related to job applications open to the public under ND Open Records Law?

The applications and any records related to the applications that contain information that could reasonably be used to identify an application who either:

does not meet the minimum qualifications for the vacancy; or

was not designed as a finalist

is confidential and cannot be released to the public. The city shall comply with all requirements for an executive session to discuss confidential applications. (NDCC 44-04-18.27 and 44-04-17.1(3))

If, by the close of the application period for a vacant position, a city receives applications from fewer than three applicatnts who meet the minimum qualifications, the appplications and records related to the applicatiosn are open to the public. (NDCC 44-04-18.27)

4. What can happen if we violate the law?

A member of the public may ask the attorney general to issue an advisory opinion regarding an alleged violation of the open records or meetings laws. A public entity also can be sued, and individual public officials can be prosecuted criminally if they knowingly violate the open records and meetings laws.

5. You mean I can be charged with a crime for violating the open records and meetings laws?

Yes, but only if you "knowingly" violate the open records or meetings laws. A public official who “knowingly” violates the open records and meetings laws is guilty of a misdemeanor. To “knowingly” violate these laws, a public official must know or have a firm belief that he or she is failing to fulfill the duties imposed by those laws. An honest mistake by a public official who is acting in good faith is not a "knowing" violation of these laws and is not a criminal offense.

6. What is a "meeting?"

As used in the open meetings law, the term "meeting" means any gathering of a quorum of the members of a governing body of a public entity regarding public business. The form of the gathering is irrelevant.

We only have one meeting a month, and then we get together once a week to have coffee and discuss upcoming agenda items. These aren't meetings, are they?

Yes, they are. "Meeting" includes informal gatherings or work sessions, and discussions where some or all of the members of the governing body are participating in the meeting by telephone. The only time a gathering of a “quorum” is not a meeting is if it is a purely social gathering – no public business can be considered, or else it becomes a meeting

7. Are committees required to be open?

Yes. The definition of "governing body" includes any group of persons who are getting together under authority delegated by a governing body.

But I can talk to one other member of a governing body without it being a meeting, can't I?

Yes, as long as the two of you are not a quorum of a three-member governing body (including committees) and the discussion is not part of a sequence of individual conversations, which collectively involve a quorum of a governing body. But be aware that if members of a governing body participate in a series of individual conversations that collectively constitute a quorum of the governing body, those conversations are a meeting.

If we hold an open meeting, do we have to allow the public to address the governing body?

No. The right to attend an open meeting does not include the right to participate in that meeting. However, other statutes may require a public hearing at which the public is allowed to comment on specific subjects.

8. How can we properly hold a closed meeting?

You first must convene in a properly noticed open meeting. Next, you need to announce the legal authority to close the meeting and the topics to be considered during the closed meeting. After that, unless a closed meeting is required, the governing body must vote on whether to close the meeting. Any executive session must be tape recorded for possible review by a court or the Office of the Attorney General.

Remember - a recorded roll call vote is required on all votes that pertain to the merits of a matter before the governing body.

9. When is notice required?

Prior written notice is required for all open meetings. The notice must be provided to the public at the same time the members of the governing body are notified of the meeting.

10. What are we supposed to do with a meeting notice?

For all meetings, you must:
•File the notice with the appropriate central location (i.e., the secretary of state for state agencies, city auditor for city agencies, and county auditor for other public entities);
•Post the notice in the entity's main office (if it has one);
•Post the notice at the location of the meeting (if held somewhere other than the entity's main office); and
•Give the notice to anyone who has asked for it.
•For special or emergency meetings, you also must notify the entity's official newspaper and any media representatives who have asked for notice of special or emergency meetings.

11. Can we add items to the agenda of a meeting?

For regular meetings, new items of business can be discussed which were not included in the notice. For special or emergency meetings, the public entity's discussion is limited to the topics included in the notice.

12. Is everything in a government office a "record"?

Generally, yes. The definition of "record" includes all recorded information, regardless of physical form (paper, e-mail, computer file, photographs, audiotape, or videotape) that has a connection with how public funds are spent or with the public entity's performance of its governmental functions.

13. What are we supposed to do when we receive a request for records?

You are required to respond to an open records request within a reasonable time, either by providing the requested record or by explaining the legal authority for denying all or part of the request. If you have a good reason why you cannot respond immediately to a request, let the requester know when you think the requested record will be available.

The time in which you are required to respond to a request is generally measured in hours or a few days, rather than several days or weeks.

14. How can we properly deny a request for records?

If a specific statute makes certain information confidential or closed to the public, you need to tell the requester about that statute. Upon request, you have to put your denial, including the legal authority, in writing.

15. Can we require requesters to identify themselves and explain why they want the requested records, or at least make them put the request in writing?

No. Everyone has a right to open records, regardless of the person's reason for requesting the records. An open records request does not have to be made in person or in writing.

16. Are we required to give unsupervised access to open records?

No. You must maintain the integrity of original public records, even if the records are open to the public. You can watch the requester to prevent unauthorized alteration or destruction of public records, but you may not intimidate a person under the guise of “supervising” the person's access.

17. Do we have to make copies of records and mail the records to the requester?

Yes, if a person is entitled to access a record, the person is also entitled to a copy of that record upon request and to have the copy mailed.

18. What can we charge if a person requests records?

Access to records is generally free, but you can charge up to $25 per hour (excluding the first hour, which is free) if locating the requested records takes longer than one hour. For copies of open records, you can charge the requester the actual cost of making the copy, including labor, and you can insist on receiving the money before making or mailing the copies. Other statutes may authorize a different fee.

19. Do we have to separate non-public information from public information?

Yes. You are only able to deny access to the items of recorded information for which there is a specific statute closing that information to the public. The remaining information must be open to the public. You cannot charge for the time it takes to separate non-public information from an open record

20. Who may call a special meeting of the city governing board?

Under the city council form of government, the council may prescribe by ordinance the manner in which special meetings may be called (NDCC 40-08-10) A typical ordinance would provide that a special meeting may be called by the mayor or any two council members. Under the city commission form of government, special meetings may be called at any time by the president or any two members of the board to consider matters mentioned in the call of such meeting. (NDCC 40-09-11)

21. How long does a city need to advertise a special meeting before it happens?

State law does not have a minimum notice period required for special meetings; however, public notice needs to be provided at the same time that members of the governing body receive notice. (NDCC 44-04-20) Please note that some cities have city ordinances that set minimum notice requirements for special meetings.