1. North Dakota Attorney General’s Office

2.  N.D.C.C. 44-04-17.1(13), definition includes: ◦ Public or governmental bodies, boards, bureaus, commissions, or agencies of the state or political subdivision, including entities created or recognized by the Constitution, state statute, executive order of the governor, or by resolution, ordinance, rule, bylaw, or executive order of the chief executive authority of a political subdivision of the state, to exercise public authority or perform a governmental function

3.  N.D.C.C. 44-04-17.1(13) and (17) ◦ Also includes a “task force or working group” created by an individual in charge of a state agency  N.D.C.C. 44-04-17.1(17) – group formally appointed or delegated to meet as a group to assist, advice, or act on behalf of the individual in charge of a state agency or institution when a majority of the members of the group are not employees of the agency or institution.

4.  N.D.C.C. 44-04-17.1(10) and (13) ◦ “Organizations or agencies supported in whole or in part by public funds, or expending public funds.”  “supported” – receiving public funds exceeding the fair market value of any goods or services

5.  May become fully or partially subject to open records laws if: ◦ The organization is delegated authority by a governing body of a public entity; ◦ The organization is created or recognized by state law, or by an action of a political subdivision; ◦ The organization is supported in whole or in part by public funds or is expending public funds; or ◦ The organization is an agent or agency of a public entity performing a governmental function on behalf of a public entity or having possession or custody of records of the public entity.

6.  N.D.A.G. 2015-O-01: Circle of Friends Humane Society ◦ Non-profit corporation that provides variety of services including:  caring and sheltering abused, neglected, and abandoned animals,  providing education and programs to increase awareness on responsibilities to animals, and  acts as city animal impound facility.

7.  “Supported by Public Funds Test” ◦ Not every receipt of public funds will subject an entity to open records laws – the entity has to be “supported” by the public funds.  If the goods and services provided in exchange for public funds are reasonably identified in an agreement or contract and have a fair market value that is less then or equivalent to the amount of public funds it receives, then it is NOT “supported” by public funds. VERSUS  Unrestricted public funds provided to the organization who then has discretion over how the funds are spent. The more discretion over the use of the funds, the more likely the funds are for the entity’s general support, and therefore considered a “public entity” subject to open records law.

8.  Here, receives funding from: ◦ mill levy funds from the City of Grand Forks, and ◦ public funds raised through taxation by Grand Forks County.  City mill levy funds ◦ N.D.C.C. 40-05-19 allows cities to provide funds for the purpose of constructing, operating, and maintaining animal shelters.  No contracts or agreements in place – Humane Society has discretion to decide how the mill levy funds are spent within these general areas  County tax appropriations ◦ Humane Society does not competitively bid for the funds, rather, just submits requests to the County Commission for approval and the entities enter into a Service Agreement.  Service Agreement generally provides that the county agrees to provide funds for the Humane Society to operate a facility for the care and shelter of stray and abandoned animals and to provide educational programs.  Cannot be ascertained from reading the agreement what specific services Humane Society will provide in exchange for these funds.  Funds not segregated in separate accounts to be utilized for specific services. Rather, funds pooled with other revenue that thereafter fund the entire operation of the Humane Society.  DECISION: receives public funds for the general support of the organization rather than in a fair market value exchange for specific goods or services. Is therefore “supported” by public funds and subject to open records law.

9.  “Agency of Government Test” ◦ Definition of “public entity” includes “agencies” of political subdivisions of the state. ◦ Supreme Court has interpreted “agencies” to mean a relationship in which one party delegates the transaction of some lawful business to another.  A non-governmental organization performing a governmental function on behalf or in place of a political subdivision is an “agency” of that subdivision. ◦ Test analyzes types of services provided and whether the organization is performing a governmental function in place of the public entity, rather than providing services to the public entity.

10.  State law gives authority to law enforcement officials to seize or take custody of animals believe to be neglected, abused, treated cruelly, or abandoned. ◦ Law enforcement, by law, are charged with the duty to care for the animals “either directly or through a contractual arrangement with another.”  Grand Forks County and City law enforcement use the Humane Society for such purposes. ◦ Therefore, the Humane Society was acting “in place of” the public entities to perform the governmental function of operating a shelter.  DECISION: Humane Society was acting as an “agency” of government and subject to open records law.

11.  Law: the application of open records law is not limited to a public entity itself; it also applies to recorded information regarding public business in the possession of an “agent” of the public entity. ◦ Supreme Court: open records law cannot be circumvented by delegating a public duty to a third party or by placing documents in the possession of the third party  City of Bismarck contracts with Bis-Man Transit to provide public transportation services. Bis-Man transit – through the contract and receipt of public funds – recognizes it is a “public entity” subject to open records law. ◦ In this contract, it authorizes Bis-Man to contract with local, private, for-profit, or non-profit transportation providers to perform the actual transit services.  Bis-Man utilized this option and entered into a contract with a private company, Taxi 9000, to perform transit services and operations.

12.  When a private corporation enters into a contract with a public entity and performs governmental functions and public services in place of the public entity, it is an “agent” of the public entity subject to open records law.  DECISION: Bis-Man’s delegation of its public duty to Taxi 9000, and Taxi 9000 performing such functions on behalf and in place of Bis-Man, render Taxi 9000 an “agent” subject to open records law. ◦ Any records relating to the public business Taxi 9000 performs on behalf of Bis-Man, pursuant to their contractual agreement, are subject to open records law.

13.  Private attorney hired by Township to draft zoning ordinances ◦ Attorney in private practice is considered an “agent” of the public entity with respect to legal services provided to the public entity. for a township was considered an “agent” ◦ Client files held by an attorney belong to the client rather than the attorney. The legal files of a municipality belong to the municipality as the client rather than the city attorney. ◦ Records in the possession of the “agents” received or prepared in connection with public business or contain information relating to public business, are subject to open records law.

14.  N.D.A.G. 2015-O-05: N.D. Council of Educational Leaders ◦ Non-profit association for superintendents, principals, and other school administrators. Purpose and interests laid out in Constitution and By-Laws. ◦ NDCEL:  Not created by state law or action of political subdivision;  No public entities have any jurisdiction, regulation, or control over the NDCEL;  Not been delegated any authority by a governing body of a public entity;  No contract with a public entity to perform a governmental function on public entity’s behalf. ◦ FOCUS therefore on whether “supported” or “expending” public funds.

15.  Public funds analysis ◦ REMEMBER: even if an organization receives public funds – if the funds are in exchanged for the fair market value of the goods or services received as reasonably identified in a contract, then it is not considered “supported” by public funds. ◦ Here:  Membership Dues  Paid directly by members out of pocket or by school districts in exchange for a variety of services and benefits including: legal assistance, professional development opportunities, graduate level instruction, legislative outreach, etc.  DECISION: services received outweigh cost of membership dues exchanged and therefore public funds are paid at or below fair market value and therefore not “supported”  Conference Registration Fees  Paid in exchange for participation in the training and conferences services.  DECISION: fair market value exchange  Grants  Receives grants from DPI for reimbursement of some workshops and conference expenses. Grants involve detailed budget requests and how the funds will be spent if approved. This money is then kept in separate account with the NDCEL acting as a fiscal agent.  DECISION: documents identify the specific goods and services provided by NDCEL in exchange for the public funds and therefore not “support”

16.  Ultimately determined that it was not a public entity subject to open records law and NDCEL properly denied requests for records  Caveat ◦ FOOTNOTE 29 –  NDCEL does co-sponsor some workshops and conferences with other state agencies. NDCEL organizes the workshops, retains the registration fees, pays workshop expenses, and retains money as payment for the time spent by its employees to put on and organize the workshops. Although this would not be to generally fund and support the organizations, it is conceivable that these records would be considered public records because the NDCEL acts in conjunction with the state agencies to provide the workshops.

17.  When two or more people, regardless of membership, are delegated authority to perform any function on behalf of a governing body of a public entity, a committee is created that is subject to open records and meeting laws. ◦ N.D.A.G. 2007-O-13: Grand Forks School Board  Directed two board members to conduct a search for an interim superintendent. “Committee” formed subject to open record and meeting laws, even though the committee did not have final decision making authority.

18.  All records  Possession of public entity  Regarding public business  OPEN N.D.C.C. § 44-04-17.1(16) (definition of “record”)

19.  Includes recorded information of any kind, regardless of the physical form or characteristic by which the information is stored, recorded, or reproduced. N.D.C.C. 44-04-17.1(16)

20.  “all matters that relate or may foreseeably relate in any way to …the performance of the public entity’s governmental functions, including any matter over which the public entity has supervision, control, jurisdiction, or advisory power; or…the public entity’s use of public funds.” N.D.C.C. § 44-04-17.1(12)

21.  Personnel file  Job performance  Evaluations  EXCEPTION: personnel records of employees of public entity, only considered public because they are supported by public funds, are exempt (N.D.C.C. 44-04-18.1(3))  E-mails that are business related  Records on Personal Devices  Home computers  Personal cell phone  Contracts with a public entity – prices, costs

22.  There has to be a law that specifically says the record is protected.  The law will say the record is “not subject to Article XI of the ND Constitution,” “not an open record,” “exempt,“ or “confidential.”

23.  Exempt records may be released.  Discretion is with the public entity.  May be called a “closed” record.  Not against the law to release an exempt record. N.D.C.C. §§ 44-04-17.1(2) (“closed record”); (5) (“exempt record”)  Confidential records cannot be released.  No discretion.  Can only release pursuant to the statute.  Class C felony to knowingly release. §12.1-13-01 N.D.C.C. § 44-04-17.1(3) (“confidential record”)

24.  Exempt  N.D.C.C. § 44-04- 18.1 - Public employee personal info, including:  address  phone number  photograph  payroll deduction info  dependent(s) info  Confidential  Social security numbers  Employee medical records  Computer passwords  Employee use of EAP records

25.  Every person has the right to inspect or make a request for public records  The request DOES NOT have to be in writing.  The requester DOES NOT have to give their name or reason for the request.  You must provide records – not opinions or explanations.  Do not have to create new records  You only have to provide one copy of the record, once.

26.  You only have to provide records you have in your possession  Requests should reasonably identify the record, you can ask for clarification, but cannot intimidate  Give a legal reason for any denial of records.  Review and redact for confidential information. (N.D.C.C. § 44-04-18.10)  Communicate with requester – give estimate of time, costs, etc.  Provide records within a reasonable time.

27.  Provide records within a reasonable time.  Several factors used to determine appropriate length of any delay ◦ Such as:  Need to consult with attorney if have reasonable doubt on whether the record is open  Excising confidential information  Bulk of request and volume of documents reviewed  Office staff and availability, workload, balancing of other responsibilities

28.  25 ¢ per copy for 8x11 or 8x14 page.  Locating records, even electronic records – first hour free, thereafter $25/hour.  Redacting confidential information – first hour free, thereafter $25/hour. Electronic records.  Actual cost of postage, maps, color photos.  Can ask for money up front.  NEW LEGISLATION: ◦ May withhold records for subsequent requests until you receive payment for any outstanding balance ◦ 5 or more requests from same requestor w/in 7 days, may treat as one request when computing time to locate/excise records  Access is free!!! N.D.C.C. § 44-04-18

29.  Must provide reasonable access to electronically maintained records.  Can’t impair ability to access records by contracting with a third party.  No charge for electronic copy unless it takes IT longer than one hour to produce.  If longer than 1 hour – charge actual cost of IT resources.

30.  www.ag.nd.gov www.ag.nd.gov  Manuals  Opinions  Fact Sheets