North Dakota Century Code t44c04

CHAPTER 44-04

DUTIES, RECORDS, AND MEETINGS

44-04-01. When official reports to be made.

All county, township, and city officers, except such as are required to make their reports at

some other specified time, who are required by law to make annual reports for any purpose to

any state officer, shall prepare and transmit the same on or before the fifteenth day of August of

each year to the proper officer. For the purpose of preparing such report, the year begins on the

first day of July of each year and ends on the last day of June of the succeeding year.

44-04-02. Penalty for failure to make report.

Repealed by S.L. 1975, ch. 106, § 673.

44-04-03. Attorney general and state's attorney to prosecute officer for failure to make

report.

Upon the willful neglect of any public officer to make any report required by law, the officer

or board to whom such report should be made promptly shall notify the attorney general or the

state's attorney of such failure to report. The attorney general or state's attorney shall

investigate the neglect of duty complained of, and, if in the opinion of the attorney general or

state's attorney, the officer has not a sufficient excuse for such failure, the attorney general or

state's attorney shall prosecute such officer.

44-04-04. Aliens convicted of felony or adjudged mentally ill.

Whenever any person convicted of a felony or adjudged mentally ill is committed to the

custody of the department of corrections and rehabilitation, a county jail, or to any other county

institution that is supported wholly or in part by public funds, the warden, superintendent, sheriff,

or other officer in charge shall inquire immediately into the nationality of that person, and, if it

appears that that person is an alien, immediately shall notify the United States immigration

officer in charge of the district in which that person is located, of the date of and the reason for

the commitment, the length of time for which the alien was committed, the country of which the

alien is a citizen, and the date on, and the port at, which the alien last entered the United States.

44-04-05. Certified copies of papers on alien convicted of felony - Request by United

States immigration officer.

Upon the official request of the United States immigration officer in charge of the territory or

district in which is located any court committing an alien, for the commission of a felony, to any

state institution supported wholly or in part by public funds, the clerk of such court shall furnish,

without charge, a certified copy of the complaint, information, or indictment, and the judgment

and sentence, and any other record pertaining to the case of the convicted alien.

44-04-06. Peace officers to report law violations.

The state's attorney, assistant state's attorney, sheriff, deputy sheriff, or peace officer of any

county, township, city in this state, having any evidence, knowledge, or notice of any violation of

any laws of North Dakota shall investigate and seek evidence of the violation and the names of

witnesses by whom the violation may be proved. A peace officer shall report the information to

the state's attorney of the county in which the violation occurs and shall assist the state's

attorney in the prosecution of the violators of said laws.

44-04-07. Inventory required.

The person in charge of any state department, industry, institution, board, association, or

commission shall maintain, or cause to be maintained, a complete and current inventory record

of all property of sufficient value and permanence as to render such inventory record practical.

Each year such person shall make a complete inventory of all such property, and shall maintain

such inventory, with the person's certificate thereto attached, as to the correctness of same, in

the files and records of the department, industry, institution, board, association, or commission.

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Said inventory record must provide a comprehensive description of each item, together with

manufacturer's serial number, or other means of positive identification, and must include

statements of all property disposed of by any means whatsoever, including livestock and

increase therefrom, and must be in such form and detail as may be prescribed by the

department charged with the duty of auditing or examining such records.

44-04-08. Duty of the heads of state institutions and state boards, departments, or

offices to make reports.

Repealed by S.L. 1973, ch. 403, § 57.

44-04-09. Nepotism.

A state official or state employee, in the exercise of that official's or employee's duties, may

not serve in a supervisory capacity over, or enter a personal service contract with, that official's

or employee's parent by birth or adoption, spouse, son or daughter by birth or adoption,

stepchild, brother or sister by whole or half blood or by adoption, brother-in-law or sister-in-law,

or son-in-law or daughter-in-law. As used in this section, "supervisory capacity" means the

authority to appoint, employ, hire, assign, transfer, promote, evaluate, reward, discipline,

demote, or terminate. As used in this section, "evaluate" does not include evaluations by peers

or subordinates. This section does not apply to an employment relationship or contract entered

before August 1, 1999; nor to any employment relationship or contract entered before the state

official or employee assumed the supervisory capacity; nor to any temporary work arrangement

necessary to meet a critical and urgent agency need.

44-04-10. Violation of provisions against nepotism - Penalty.

Any moneys paid out, in violation of section 44-04-09, must be deducted from the salary of

the hiring or contracting state official or state employee.

44-04-11. Offices to be kept where required by law - Penalty for violation.

Repealed by S.L. 1975, ch. 106, § 673.

44-04-12. Public property must be delivered to successor.

Unless otherwise specifically provided by law, every officer elected or appointed under the

laws of this state, on going out of office, shall deliver to that officer's successor in office all public

moneys, books, records, accounts, papers, documents, and property in that officer's possession

belonging or appertaining to such office.

44-04-13. Property delivered to successor.

Upon the death, resignation, suspension, or removal from office of any officer, all books and

papers belonging to the office, and all moneys and property in the officer's hands, must be

delivered to the officer's successor.

44-04-14. Examination of records of county officers - State's attorney to prosecute.

At the end of the term of office of each county officer, or whenever it may seem advisable,

the board of county commissioners may secure an examination of the records in that person's

office by the state auditor or other competent accountants. Any failure or irregularity discovered

must be remedied or the state's attorney shall prosecute the officer guilty thereof for neglect as

provided in section 44-04-03.

44-04-15. Examination of records of local officers - State's attorney to prosecute.

At the end of the term of office of each city, township, or school district officer, the city

council or board of city commissioners, board of township supervisors, or school board, as the

case may be, shall examine the records of that officer's office in the manner provided by section

44-04-14 or shall employ a competent accountant to make such examination. Upon complaint of

irregularity by the proper board, the state's attorney shall prosecute as provided in section

44-04-03.

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44-04-16. Officer to provide blanks and records for office.

Each county, city, township, or school district officer shall provide, at the expense of the

county, city, township, or school district, as the case may be, such blanks and records as are

necessary for making proper records and for transacting any official business connected with

the office.

44-04-17. Various officers' restrictions - Penalty.

Repealed by S.L. 1975, ch. 106, § 673.

44-04-17.1. Definitions.

As used in this section through section 44-04-32:

1. "Closed meeting" means all or part of an exempt meeting that a public entity in its

discretion has not opened to the public, although any person necessary to carry out or

further the purposes of a closed meeting may be admitted.

2. "Closed record" means all or part of an exempt record that a public entity in its

discretion has not opened to the public.

3. "Confidential meeting" or "confidential record" means all or part of a record or meeting

that is either expressly declared confidential or is prohibited from being open to the

public.

4. "Executive session" means all or part of a meeting that is closed or confidential.

5. "Exempt meeting" or "exempt record" means all or part of a record or meeting that is

neither required by law to be open to the public, nor is confidential, but may be open in

the discretion of the public entity.

6. "Governing body" means the multimember body responsible for making a collective

decision on behalf of a public entity. "Governing body" also includes any group of

persons, regardless of membership, acting collectively pursuant to authority delegated

to that group by the governing body.

7. "Information technology resources" includes data processing hardware and software

or technology support services necessary to facilitate a response to a request for

electronic records.

8. "Law" includes federal statutes, applicable federal regulations, and state statutes.

9. a. "Meeting" means a formal or informal gathering or a work session, whether in

person or through any electronic means, of:

(1) A quorum of the members of the governing body of a public entity regarding

public business; or

(2) Less than a quorum of the members of the governing body of a public entity

regarding public business, if the members attending one or more of the

smaller gatherings collectively constitute a quorum and if the members hold

the gathering for the purpose of avoiding the requirements of section

44-04-19.

b. "Meeting" does not include:

(1) A chance or social gathering at which public business is not considered;

(2) Emergency operations during a disaster or emergency declared under

section 37-17.1-10 or an equivalent ordinance if a quorum of the members

of the governing body are present but are not discussing public business as

the full governing body or as a task force or working group;

(3) The attendance of members of a governing body at meetings of any

national, regional, or state association to which the public entity, the

governing body, or individual members belong;

(4) Training seminars at which no other public business is considered or

discussed; and

(5) Administration of examinations by a regulatory board when no other public

business is considered or discussed.

c. Notwithstanding subdivisions a and b, as applied to the legislative assembly,

"meeting" means any gathering subject to section 14 of article IV of the

Constitution of North Dakota.

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d. Notwithstanding subdivisions a and b, "meeting" does not include any meeting of

the judicial branch or a committee or workgroup of the judicial branch. Such

meetings are governed by section 5 of article XI of the Constitution of North

Dakota.

10. "Organization or agency supported in whole or in part by public funds" means an

organization or agency in any form which has received public funds exceeding the fair

market value of any goods or services given in exchange for the public funds, whether

through grants, membership dues, fees, or any other payment. An exchange must be

conclusively presumed to be for fair market value, and does not constitute support by

public funds, when an organization or agency receives a benefit under any authorized

economic development program.

11. "Political subdivision" includes any county or city, regardless of the adoption of any

home rule charter, and any airport authority, township, school district, park district, rural

fire protection district, water resource district, solid waste management authority, rural

ambulance service district, irrigation district, hospital district, soil conservation district,

recreation service district, railroad authority, or district health unit.

12. "Public business" means all matters that relate or may foreseeably relate in any way

to:

a. 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

b. The public entity's use of public funds.

13. "Public entity" means all:

a. Public or governmental bodies, boards, bureaus, commissions, or agencies of the

state, including any entity created or recognized by the Constitution of North

Dakota, state statute, or executive order of the governor or any task force or

working group created by the individual in charge of a state agency or institution,

to exercise public authority or perform a governmental function;

b. Public or governmental bodies, boards, bureaus, commissions, or agencies of

any political subdivision of the state and any entity created or recognized by the

Constitution of North Dakota, state statute, executive order of the governor,

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; and

c. Organizations or agencies supported in whole or in part by public funds, or

expending public funds.

14. "Public funds" means cash and other assets with more than minimal value received

from the state or any political subdivision of the state.

15. "Quorum" means one-half or more of the members of the governing body, or any

smaller number if sufficient for a governing body to transact business on behalf of the

public entity.

16. "Record" means recorded information of any kind, regardless of the physical form or

characteristic by which the information is stored, recorded, or reproduced, which is in

the possession or custody of a public entity or its agent and which has been received

or prepared for use in connection with public business or contains information relating

to public business. "Record" does not include unrecorded thought processes or mental

impressions, but does include preliminary drafts and working papers. "Record" also

does not include records in the possession of a court of this state.

17. "Task force or working group" means a group of individuals who have been formally

appointed and delegated to meet as a group to assist, advise, 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.

44-04-18. Access to public records - Electronically stored information.

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

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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

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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.

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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.

44-04-18.1. Public employee personal, medical, and employee assistance records -

Confidentiality - Personal information maintained by state entities - Exempt.

1. Any record of a public employee's medical treatment or use of an employee assistance

program is not to become part of that employee's personnel record and is confidential

and, except as otherwise authorized by law, may not be used or disclosed without the

written authorization of the employee. As used in this section, the term "public

employee" includes any individual who has applied for employment, is employed, or

has been employed by a public entity.

2. Except as otherwise specifically provided by law, personal information regarding a

public employee contained in an employee's personnel record or given to the state or

a political subdivision by the employee in the course of employment is exempt. As

used in this section, "personal information" means a person's month and day of birth;

home address; home telephone number or personal cell phone number; photograph;

medical information; motor vehicle operator's identification number; public employee

identification number; payroll deduction information; the name, address, telephone

number, and date of birth of any dependent or emergency contact; any credit, debit, or

electronic fund transfer card number; and any account number at a bank or other

financial institution. Information regarding the type of leave taken by an employee is

exempt, although the amount of leave taken or accrued, and the dates of the leave

taken, is public record. Information regarding leave applied for but not yet taken is

exempt until the leave is taken.

3. Nonconfidential information contained in a personnel record of an employee of a public

entity as defined in subdivision c of subsection 13 of section 44-04-17.1 is exempt.

4. Except as otherwise specifically provided by law, personal information regarding a

licensee maintained by an occupational or professional board, association, state

agency, or commission created by law is exempt. As used in this section, "licensee"

means an individual who has applied for, holds, or has held in the past an occupational

or professional license, certificate, credential, permit, or registration issued by a state

occupational or professional board, association, agency, or commission.

5. Information relating directly to persons engaged in an organized public safety peer

counseling or a public safety peer debriefing is exempt.

6. Records relating to a public entity's internal investigation of a complaint against a

public entity or employee for misconduct are exempt until the investigation of the

complaint is complete, but no longer than seventy-five calendar days from the date of

the complaint.

44-04-18.2. Certain economic development records exempt from disclosure.

Repealed by S.L. 1997, ch. 381, § 23.

44-04-18.3. Records of juvenile court supervisors and probation officers and law

enforcement and correctional employees - Law enforcement work schedules -

Confidential informants.

1. Except as provided in subsection 5, a telephone number and the home address of a

prosecutor, supreme court justice, district court judge, judicial referee, juvenile court

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director or probation officer, an employee of a law enforcement agency, employee of a

state or local correctional facility, and an employee of the department of corrections

and rehabilitation are confidential. Information contained in a personnel record of an

employee of the department of corrections and rehabilitation may not be disclosed to

an inmate in the legal custody of the department of corrections and rehabilitation

confined in a jail, prison, or other correctional facility unless authorized by the director

of the department of corrections and rehabilitation. Information contained in a

personnel record of a law enforcement officer of a state or local law enforcement

agency or in the personnel record of a correctional employee of a correctional facility

subject to chapter 12-44.1 may not be disclosed to an inmate confined in a state

correctional facility or correctional facility subject to chapter 12-44.1 unless authorized

by the employing agency.

2. Records or other information that would reveal the identity, or endanger the life or

physical well-being, of an undercover law enforcement officer is confidential. For

purposes of this subsection, an "undercover law enforcement officer" means a

full-time, salaried employee of a local or state law enforcement agency who acts

surreptitiously or poses as someone other than a law enforcement officer while

engaging in the investigation of a violation of law.

3. Any record containing the work schedule of employees of a law enforcement agency is

exempt.

4. A law enforcement officer or prosecutor, within the scope of the employment of the

officer or prosecutor, may provide assurances of confidentiality to a person providing

information regarding violations of the law. Any information that would identify or

provide a means of identifying a confidential informant, if the identity of the informant is

not otherwise publicly known, is confidential and may be disclosed only as permitted

by law.

5. A home address of an individual in subsection 1 which is included in a geographic

information system, a property title record, or tax parcel data is confidential only if an

individual in subsection 1 or the individual's employer submits a written request to the

custodian of the records. The request will remain confidential for the remainder of a

calendar year and must be renewed annually.

44-04-18.4. Confidentiality of trade secret, proprietary, commercial, financial, and

research information.

1. Trade secret, proprietary, commercial, and financial information is confidential if it is of

a privileged nature and it has not been previously publicly disclosed.

2. Under this section, unless the context otherwise requires:

a. "Commercial information" means information pertaining to buying or selling of

goods and services that has not been previously publicly disclosed and that if the

information were to be disclosed would impair the public entity's future ability to

obtain necessary information or would cause substantial competitive injury to the

person from which the information was obtained.

b. "Financial information" means information pertaining to monetary resources of a

person that has not been previously publicly disclosed and that if the information

were to be disclosed would impair the public entity's future ability to obtain

necessary information or would cause substantial competitive injury to the person

from which the information was obtained.

c. "Proprietary information" includes:

(1) Information shared between a sponsor of research or a potential sponsor of

research and a public entity conducting or negotiating an agreement for the

research.

(2) Information received from a private business that has entered or is

negotiating an agreement with a public entity to conduct research or

manufacture or create a product for potential commercialization.

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(3) A discovery or innovation generated by the research information, technical

information, financial information, or marketing information acquired under

activities described under paragraph 1 or 2.

(4) A document specifically and directly related to the licensing or

commercialization resulting from activities described under paragraph 1, 2,

or 6.

(5) Technical, financial, or marketing records that are received by a public entity,

which are owned or controlled by the submitting person, are intended to be

and are treated by the submitting person as private, and the disclosure of

which would cause harm to the submitting person's business.

(6) A discovery or innovation produced by the public entity that an employee or

the entity intends to commercialize.

(7) A computer software program and components of a computer software

program that are subject to a copyright or a patent and any formula, pattern,

compilation, program, device, method, technique, or process supplied to a

public entity that is the subject of efforts by the supplying person 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 that might obtain

economic value from its disclosure or use.

(8) A discovery or innovation that is subject to a patent or a copyright, and any

formula, pattern, compilation, program, device, combination of devices,

method, technique, technical know-how or process that is for use, or is

used, in the operation of a business and is supplied to or prepared by a

public entity that is the subject of efforts by the supplying or preparing

person to maintain its secrecy and provides the preparing person an

advantage or an opportunity to obtain an advantage over those who do not

know or use it or that may derive independent economic value, actual or

potential, from not being generally known to, and not being readily

ascertainable by proper means by, a person that might obtain economic

value from its disclosure or use.

d. "Trade secret" means information, including a formula, pattern, compilation,

program, device, method, technique, technical know-how, or process, that:

(1) Derives independent economic value, actual or potential, from not being

generally known to, and not being readily ascertainable by proper means by,

other persons that can obtain economic value from its disclosure or use; and

(2) Is the subject of efforts that are reasonable under the circumstances to

maintain the secrecy of the information.

3. This section does not limit or otherwise affect a record pertaining to any rule of the

department of health and human services or department of environmental quality or to

any record pertaining to the application for a permit or license necessary to do

business or to expand business operations within this state, except as otherwise

provided by law.

4. This section does not limit the release or use of records obtained in an investigation by

the attorney general or other law enforcement official.

5. Unless made confidential under subsection 1, the following economic development

records and information are exempt:

a. Records and information pertaining to a prospective location of a business or

industry, including the identity, nature, and location of the business or industry,

when no previous public disclosure has been made by the business or industry of

the interest or intent of the business or industry to locate in, relocate within,

expand within this state, or partner with a public entity to conduct research or to

license a discovery or innovation. This exemption does not include records

pertaining to the application for permits or licenses necessary to do business or to

expand business operations within this state, except as otherwise provided by

law.

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b. Trade secrets and proprietary, commercial, or financial information received from

a person that is interested in applying for or receiving financing, technical

assistance, or other forms of business assistance.

6. Unless made confidential under subsection 1 or made exempt under subsection 5:

a. Bids received by a public entity in response to an invitation for bids by the public

entity are exempt until all of the bids have been received and opened by the

public entity.

b. Proposals received by a public entity in response to a request for proposals are

exempt records until a notice of intent to award is issued.

c. Records included with any bid or proposal naming and generally describing the

entity submitting the proposal are open.

7. Unless made confidential under subsection 1, records received or distributed by the

state department of emergency services under chapter 37-17.1 and the state local

intelligence center from the federal government and any public or private agency or

entity for emergency or disaster prevention, protection, mitigation, response, and

recovery, or for cyber or physical threat are exempt. Records in the possession or

under the control of a public entity which relate to cybersecurity information or critical

infrastructure, the disclosure of which may expose or create vulnerability of critical

infrastructure systems; or the safeguarding of telecommunications, electric, water,

sanitary sewage, storm water drainage, energy, fuel supply, hazardous liquid, natural

gas, coal, or other critical infrastructure system, are exempt.

a. Upon receipt of a request for records under this subsection which originated in a

federal agency or entity and are in the possession of the state department of

emergency services, state local intelligence center, or other public entity, the

requester must be referred to the federal agency or entity from which the records

originated to submit an application under the applicable federal laws or rules.

b. For purposes of this section, "cybersecurity" means processes or capabilities that

protect and defend systems, communications, and information from exploitation

and unauthorized use or modification.

c. For purposes of this section, "critical infrastructure" has the same meaning as in

subdivision a of subsection 2 of section 44-04-24.

8. Unless made confidential under subsection 1, university research records are exempt.

"University research records" means data and records, other than a financial or

administrative record, produced or collected by or for faculty or staff of an institution

under the control of the state board of higher education in the conduct of or as a result

of study or research on an educational, commercial, scientific, artistic, technical, or

scholarly issue, regardless of whether the study or research was sponsored by the

institution alone, or in conjunction with a governmental or private entity, provided the

information has not been publicly released, published, or patented.

9. Personally identifiable study information is confidential. "Personally identifiable study

information" means information about an individual participating in a human research

study or project at an institution under the control of the state board of higher

education which requires prospective institutional review board review or a

determination of exemption, if the information can be used to distinguish or trace the

individual's identity, or is linked or linkable to the individual. Examples of personally

identifiable study information include name, maiden name, mother's maiden name,

alias, personal identification number, social security number, passport number, driver's

license number, taxpayer identification number, financial account or credit card

number, address, electronic mail address, photographic images, fingerprints,

handwriting, and other biometric data. Information about participants in human

subjects research which does not constitute personally identifiable study information

but is part of a human subjects research study or project at an institution under the

control of the state board of higher education requiring prospective institutional review

board review or a determination of exemption is a university research record under

subsection 8.

Page No. 10

10. Subsections 8 and 9 do not apply to a student record or other information disclosed by

an institution under the control of the state board of higher education to the statewide

longitudinal data system.

44-04-18.5. Computer software programs exempt.

Any computer software program or component of a computer software program contracted,

developed, or acquired by a public entity or state agency, institution, department, or board and

for which the public entity or state agency, institution, department, or board acquires a license,

Constitution of North Dakota. After receiving written approval from the governor, a state agency,

institution, department, or board may enter into agreements for the sale, licensing, and

distribution of its contracted, licensed, patented, or copyrighted computer software programs. A

state agency, institution, department, or board may take any needed action, including legal

action, to protect the state's interest in the computer software against improper or unlawful use

or infringement and may collect and enforce the collection of any sums due for the licensing or

sale of the computer software. A public entity may enter into agreements for the sale, licensing,

and distribution of its licensed, patented, or copyrighted computer software programs.

44-04-18.6. Access to legislative records and information.

1. The following records, regardless of form or characteristic, of or relating to the

legislative council, the legislative management, the legislative assembly, the house of

representatives, the senate, or a member of the legislative assembly are not subject to

section 44-04-18 and section 6 of article XI of the Constitution of North Dakota:

a. A record of a purely personal or private nature;

b. A record that is legislative council work product or is legislative council-client

communication;

c. A record that reveals the content of communications between a member of the

legislative assembly and any person; and

d. Except with respect to a governmental entity determining the proper use of

telephone service, a record of telephone usage which identifies the parties or lists

the telephone numbers of the parties involved.

2. The exception in subdivision c of subsection 1 applies to records possessed by a

member of the legislative assembly or by any other public officer or employee.

3. This section does not apply to any record distributed at a meeting subject to section

44-04-19 and section 5 of article XI of the Constitution of North Dakota.

44-04-18.7. Criminal intelligence information and criminal investigative information -

Nondisclosure - Record of information maintained.

1. Active criminal intelligence information and active criminal investigative information are

not subject to section 44-04-18 and section 6 of article XI of the Constitution of North

Dakota. A criminal justice agency shall maintain a list of all files containing active

criminal intelligence and investigative information which have been in existence for

more than one year. With respect to each file, the list must contain the file's number or

other identifying characteristic and the date the file was established. The list required

under this subsection is subject to section 44-04-18. Personal information of any

person contained in an active or nonactive file is an exempt record as defined in

subsection 5 of section 44-04-17.1.

2. "Criminal intelligence and investigative information" does not include:

a. Arrestee description, including name, date of birth, address, race, sex, physical

description, and occupation of arrestee.

b. Facts concerning the arrest, including the cause of arrest and the name of the

arresting officer.

c. Conviction information, including the name of any person convicted of a criminal

offense.

Page No. 11

d. Disposition of all warrants, including orders signed by a judge of any court

commanding a law enforcement officer to arrest a particular person.

e. A chronological list of incidents, including initial offense report information

showing the offense, date, time, general location, officer, and a brief summary of

what occurred.

f. A crime summary, including a departmental summary of crimes reported and

public calls for service by classification, nature, and number.

g. Radio log, including a chronological listing of the calls dispatched.

h. General registers, including jail booking information.

i. Arrestee photograph, if release will not adversely affect a criminal investigation.

3. "Criminal intelligence information" means information with respect to an identifiable

person or group of persons collected by a criminal justice agency in an effort to

anticipate, prevent, or monitor possible criminal activity. Criminal intelligence

information must be considered "active" as long as it is related to intelligence gathering

conducted with a reasonable good-faith belief it will lead to detection of ongoing or

reasonably anticipated criminal activities. Criminal intelligence information also

includes training materials and information obtained by a criminal justice agency

regarding prospective criminal activities which impact officer safety until the

information is publicly disclosed.

4. "Criminal investigative information" means information with respect to an identifiable

person or group of persons compiled by a criminal justice agency in the course of

conducting a criminal investigation of a specific act or omission, including information

derived from laboratory tests, reports of investigators or informants, or any type of

surveillance. Criminal investigative information must be considered "active" as long as

it is related to an ongoing investigation that is continuing with a reasonable good-faith

anticipation of securing an arrest or prosecution in the foreseeable future.

5. "Criminal justice agency" means any law enforcement agency or prosecutor. The term

also includes any other unit of government charged by law with criminal law

enforcement duties or having custody of criminal intelligence or investigative

information for the purpose of assisting law enforcement agencies in the conduct of

active criminal investigations or prosecutions.

6. "Personal information" means a person's medical records or medical information

obtained from the medical records; motor vehicle operator's identification number;

social security number; any credit, debit, or electronic fund transfer card number;

month and date of birth; height; weight; home street address; home telephone number

or personal cell phone number; and any financial account numbers.

7. A computerized index created by a criminal justice agency of names included in

criminal files, whether active or inactive, is an exempt record.

8. Crime scene images of a victim of a homicide or sex crime or any image of a minor

victim of any crime is an exempt record as defined in subsection 5 of section

44-04-17.1.

9. An image taken with a body camera or similar device and which is taken in a private

place is an exempt record.

10. An image taken by a coroner, a medical examiner, or coroner or medical examiner

personnel, using a digital camera or similar device is an exempt record.

11. Unless otherwise provided by law, descriptions of crime scene images that include a

minor or a minor victim or parts of a record containing such descriptions are exempt.

44-04-18.8. Examination questions and procedures exemption.

The following records are not subject to section 44-04-18 and section 6 of article XI of the

Constitution of North Dakota: examination or test questions, scoring keys, and other data used

to administer any licensing, employment, academic, or certification examination or test, if the

examination or test is to be used again in whole or in part; and records establishing examination

or test procedures and instructions regarding the administration, grading, or evaluation of any

examination or test, if disclosure may affect scoring outcomes.

Page No. 12

44-04-18.9. Access to financial account numbers.

Any credit, debit, or electronic fund transfer card or account number and any financial

institution account number that a public entity, elected official, or appointed official uses or has

available for making electronic or other deposits, transfers, or payments is not an open record.

44-04-18.10. Disclosure of public records.

1. A public entity may not deny a request for an open record on the ground that the

record also contains confidential or closed information.

2. Subject to subsection 3 of section 44-04-18, if confidential or closed information is

contained in an open record, a public entity shall permit inspection and receipt of

copies of the information contained in the record that is not confidential or closed, but

shall delete, excise, or otherwise withhold the confidential or closed information.

3. An officer or employee of a public entity may disclose or comment on the substance of

an open record. Any agreement prohibiting the disclosure or comment is void and

against public policy.

4. Unless otherwise prohibited by federal law, records of a public entity which are

otherwise closed or confidential may be disclosed to any public entity or federal

agency for the purpose of law enforcement or collection of debts owed to a public

entity, provided that the records are not used for other purposes and the closed or

confidential nature of the records is otherwise maintained. For the purpose of this

subsection, "public entity" is limited to those entities defined in subdivision a or b of

subsection 13 of section 44-04-17.1.

5. Confidential records that are authorized by law to be disclosed to another entity

continue to be confidential in the possession of the receiving entity, except as

otherwise provided by law.

6. Records confidential or exempt under subsection 7 of section 44-04-18.4 and which

are required to be disclosed to another entity for emergency or disaster prevention,

protection, mitigation, response, and recovery or for cybersecurity planning, mitigation,

or threat remain confidential or exempt after the required disclosure.

44-04-18.11. Disclosure pursuant to subpoena or order.

1. Unless disclosure under a court order is otherwise prohibited or limited by law, closed

records must be disclosed pursuant to a subpoena issued by a court, administrative

law judge, or administrative hearing officer, or other court order.

2. Unless disclosure under a court order is otherwise prohibited or limited by law,

confidential records must be disclosed pursuant to a court order. Upon request of the

public entity ordered to make the disclosure, the court ordering the disclosure shall

issue a protective order to protect the confidential nature of the records.

3. Any person who discloses confidential records of a public entity under this section is

immune from prosecution for violating section 12.1-13-01.

44-04-18.12. Cooperative investigations and litigation.

A record acquired by the office of attorney general from a governmental agency or a

nonpublic entity is exempt if the attorney general determines:

1. The record is necessary to monitor or enforce compliance with a law or order or to

further a civil investigation or litigation by the state;

2. The record is treated as confidential or privileged by the provider of the records; and

3. The provider of the records has not agreed to waive the privilege relating to or

confidentiality of the record.

44-04-18.13. Lists of minors.

Any record of a public entity that is a compilation of minor's names, addresses, telephone

numbers, or any combination thereof, is exempt.

Page No. 13

44-04-18.14. Information provided to the followup information on North Dakota

education and training system.

Repealed by S.L. 2011, ch. 127, § 6.

44-04-18.15. Fundraising and donor records exempt.

1. Any private donor or prospective donor name, address, telephone number, electronic

mail address, estate planning information, tax record or financial information, or other

personal information or correspondence received or retained by a board of higher

education or university system officer or employee or by an affiliated nonprofit

organization that provides support to and is organized and operated for the benefit of

an institution under the authority of the board of higher education is exempt.

2. Any private donor or prospective donor name, address, telephone number, electronic

mail address, estate planning information, tax record or financial information, or other

personal information or correspondence received or retained by a nonprofit

organization that is a public entity is exempt.

3. For the purposes of this section, "financial information" includes data that provides

details regarding a gift, a payment schedule of a gift, the form of a gift, or the specific

amount of a gift made by a donor.

44-04-18.16. Confidentiality of patient records at student health services and

university system clinics.

Any patient record of a patient at a state college or university student health service,

university of North Dakota medical center or family practice center, or other university system

medical center or clinic is confidential.

44-04-18.17. Personal and financial information in a consumer complaint.

Personal and financial information submitted to a state agency as part of a consumer

complaint, or gathered pursuant to an investigation of a consumer complaint, is an exempt

record as defined in subsection 5 of section 44-04-17.1. For purposes of this section, "personal

and financial information" means the home address, home telephone number, social security

number, consumer report, and credit, debit, or electronic fund transfer card number of the

complainant and any person on whose behalf the complaint is made, and any account number

of a business or individual at a bank, brokerage, or other financial institution. "Personal and

financial information" does not include the nature of the complaint, name of the complainant or

any person on whose behalf the complaint was submitted, or the address or telephone number

of the business that is the subject of the complaint.

44-04-18.18. Autopsy images - Confidential - Exceptions.

1. An autopsy photograph or other visual image or a video or audio recording of an

autopsy is confidential. However, a criminal justice agency may use or disclose these

materials for purposes of an investigation or prosecution.

2. a. After redacting all information identifying the decedent, including name, address,

and social security number, and anonymizing facial recognition, a medical

examiner, coroner, or physician may use an autopsy photograph, image, or

recording for:

(1) Medical or scientific teaching or training purposes;

(2) Teaching or training of law enforcement personnel;

(3) Teaching or training of attorneys or others with a bona fide professional

need to use or understand forensic science;

(4) Conferring with medical or scientific experts;

(5) Publication in a scientific or medical journal or textbook; or

(6) Teaching or training of coroner personnel or other licensed or certified

medical professionals.

Page No. 14

b. A medical examiner, coroner, or physician who has in good faith complied with

this subsection is not subject to any penalty or liability for using an autopsy

photograph, image, or recording.

3. The decedent's spouse, child, parent, or sibling, upon proof of the relationship, may

view an autopsy photograph, image, or recording in the business office of a medical

examiner, coroner, or physician who has possession of the materials, if there is not an

active criminal investigation or prosecution.

4. Disclosure of an autopsy photograph, image, or recording may be obtained under

section 44-04-18.11.

44-04-18.19. Exemption of records relating to individual recipients of economic

assistance or benefits.

Records concerning individual applicants or recipients of economic assistance or support

administered under the division of community services or a community action agency, including

benefits or services, are exempt from section 44-04-18 and section 6 of article XI of the

Constitution of North Dakota. These exempt records include applications, income or eligibility

verification, assessments, or other personal, medical, or financial data.

44-04-18.20. Domestic violence and victim record information exempt.

The address, telephone number, or any identifying information that, if released, could

reasonably be used to locate or identify a victim or alleged victim of domestic violence, of a sex

offense under chapter 12.1-20, of sexual performances by a child under chapter 12.1-27.2, or of

human trafficking under chapter 12.1-41, contained in any record maintained by a criminal

justice agency as defined by section 44-04-18.7 or correctional facility as defined by section

12-44.1-01 is exempt.

44-04-18.21. Electronic mail addresses and telephone numbers exempt.

The electronic mail address or telephone number of an individual which is provided to a

public entity for the purpose of or in the course of communicating with that public entity is an

exempt record. This section may not be used to shield the identity of the individual

communicating with the public entity.

44-04-18.22. Medical condition or medical treatment information obtained during

emergency medical response - Exempt.

The medical condition of an individual, medical treatment provided to an individual, and the

name of an individual who received medical treatment from a public entity during an emergency

medical response is an exempt record.

44-04-18.23. Library, archive, and museum collections - Exempt records.

A public library, archive, or museum may designate a donated record as an exempt record if

the donor of the record requests as a condition of the donation that the record not be released

to the public for a specific amount of time, which may not exceed twenty years beyond the death

of the donor.

44-04-18.24. Legislative bill tracking records - Exempt.

Any record maintained within a legislative bill tracking system administered or operated by a

public entity is an exempt record.

44-04-18.25. Value of property paid or delivered to the administrator of the state

abandoned property office - Exempt record.

A record of the value of property paid or delivered to the administrator of the state

abandoned property office under section 47-30.2-21 is an exempt record.

Page No. 15

44-04-18.26. Requests for records by members of the legislative assembly and the

legislative council.

Notwithstanding section 44-04-18.6, any record of the legislative council relating to a

request for public records made by the legislative council on behalf of a member of the

legislative assembly is a public record. The legislative council shall maintain a written or digital

record of any request for public records made on behalf of a member of the legislative assembly

which identifies the member of the legislative assembly who made the request.

44-04-18.27. Applications for public employment - Hiring process - Confidential

records and open records.

If a public entity or any person delegated authority by a public entity to review applications

or make hiring decisions receives applications from three or more applicants who meet the

minimum qualifications for a vacant position, the public entity or other person shall designate

three or more of the qualified applicants as finalists for further consideration before the public

entity or other person may issue an offer of employment to fill the position. However, if the public

entity or other person does not wish to consider any of the applications further and decides not

to make an offer of employment for the vacant position, the public entity need not designate any

finalist. The applications and any records related to the applications which contain information

that could reasonably be used to identify an applicant are exempt. Once the finalists are

designated, the applications and related records of the finalists are open to the public. The

public entity or other person reviewing applications on behalf of the public entity shall comply

with all requirements for an executive session to discuss exempt applications. If, by the close of

the application period for a vacant position, a public entity receives applications from fewer than

three applicants who meet the minimum qualifications, the applications and records related to

the applications are open to the public. A public entity may adopt policies regarding the release

of exempt records under this section.

44-04-18.28. Title IX records at state universities and colleges exempt.

Any record related to a complaint or investigation under title IX of the Education

Amendments of 1972 [Pub. L. 92-318; 20 U.S.C. 1681 et seq.] at an institution under the control

of the state board of higher education which contains personally identifiable information about a

party to the complaint is an exempt record. For purposes of this section, "personally identifiable

information" means information that directly identifies an individual, and information that, alone

or in combination with other information, is linked or linkable to an individual and would allow a

reasonable person who lacks knowledge of the relevant circumstances to identify the individual.

44-04-18.29. Information received for audits by the board of university and school

lands.

A record received by the board of university and school lands from a private entity for

purposes of the board's audit of the entity's coal, oil, gas, or other royalty payments to the board

is confidential. However, the board may furnish information to the attorney general, other state

agencies, a prosecuting official requiring the information for use in the prosecuting official's

official duties, or for legislative investigations under chapter 54-03.2. Confidential information

furnished by the board to any third party under this section remains confidential while in the

possession of the third party. Confidential information received by the board from any third party

under this section remains confidential while in the possession of the board.

44-04-18.30. Identity of reporter to social services agency - Exempt records.

1. For purposes of this section:

a. "Human services" means services provided to an individual or an individual's

family in need of services to assist the individual or the individual's family in

achieving and maintaining basic self-sufficiency, including physical health, mental

health, education, welfare, food and nutrition, and housing; and

b. "Public social services agency" means a state, county, or local public agency that

provides human services, and includes regional human service centers, county

Page No. 16

social services boards, multicounty social services districts, and the department

of health and human services.

2. The name, address, telephone number, electronic mail address, or other record that

reasonably could be used to identify an individual who provided information to a public

social service agency is an exempt record if:

a. The information relates to a matter involving human services over which the

agency has regulatory jurisdiction; and

b. The agency determines the individual had a good-faith belief the information

related to a possible violation of law when the individual provided it to the agency.

44-04-18.31. Background interviews for law enforcement officer applications - Exempt

records.

Any record revealing the substance of, or the individual interviewed in, a background

interview conducted as part of the consideration of an applicant for a position as a law

enforcement officer is an exempt record. For purposes of this section, "background interview"

means an interview with an individual, other than the applicant for a law enforcement officer

position, which relates to the fitness, character, behavior, or other qualifications of the applicant.

44-04-18.32. Medical records or medical information - Exempt.

Unless otherwise provided by law, a medical record or a record containing medical

information in the possession of a public entity is an exempt record.

44-04-19. Access to public meetings.

Except as otherwise specifically provided by law, all meetings of a public entity must be

open to the public. That portion of a meeting of the governing body of a public entity as defined

in subdivision c of subsection 13 of section 44-04-17.1 which does not regard public business is

not required to be open under this section.

1. This section is violated when any person is denied access to a meeting under this

section, unless such refusal, implicitly or explicitly communicated, is due to a lack of

physical space in the meeting room for the persons seeking access or lack of

electronic capacity to allow public viewing of the meeting through electronic means.

2. For purposes of this section, if the meeting is held in person, the meeting room must

be accessible to, and the size of the room must accommodate, the number of persons

reasonably expected to attend the meeting. If the meeting is held by electronic means,

the electronic capacity must accommodate the number of persons reasonably

expected to attend the meeting remotely.

3. The right of a person to attend a meeting under this section includes the right to

photograph, to record on audiotape or videotape, and to broadcast live on radio or

television the portion of the meeting that is not held in executive session, provided

there is no active interference with the conduct of the meeting. The exercise of this

right may not be dependent upon the prior approval of the governing body. However,

the governing body may impose reasonable limitations on recording activity to

minimize the possibility of disruption of the meeting.

4. For meetings subject to this section, if the meeting is held through any electronic

means, the information necessary to join or view the meeting electronically must be

included in the notice issued under section 44-04-20.

44-04-19.1. Open records and open meetings - Exemptions for attorney work product,

attorney consultation, and negotiation preparation.

1. Attorney work product is exempt from section 44-04-18. Attorney work product and

copies thereof shall not be open to public inspection, examination, or copying unless

specifically made public by the public entity receiving such work product.

2. Attorney consultation is exempt from section 44-04-19. That portion of a meeting of a

governing body during which an attorney consultation occurs may be closed by the

governing body under section 44-04-19.2.

Page No. 17

3. Active investigatory work product is exempt from section 44-04-18.

4. "Adversarial administrative proceedings" include only those administrative proceedings

in which the administrative agency or institution of higher education acts as a

complainant, respondent, or decisionmaker in an adverse administrative proceeding.

This term does not refer to those instances in which the administrative agency or

institution acts in its own rulemaking capacity.

5. "Attorney consultation" means any discussion between the members of a governing

body and its attorney in instances in which the governing body seeks or receives the

attorney's advice regarding and in anticipation of reasonably predictable or pending

civil or criminal litigation or adversarial administrative proceedings or to receive its

attorney's advice and guidance on the legal risks, strengths, and weaknesses of an

action of a public entity which, if held in public, would have an adverse fiscal effect on

the entity. All other discussions beyond the attorney's advice and guidance must be

made in the open, unless otherwise provided by law. All statements made by a

participant or between participants during an executive session held for the purpose of

attorney consultation are exempt if the statements relate to the subject for which

attorney consultation was established. Mere presence or participation of an attorney at

a meeting is not sufficient to constitute attorney consultation.

6. "Attorney work product" means any document or record that:

a. Was prepared by an attorney representing a public entity or prepared at such an

attorney's express direction;

b. Reflects a mental impression, conclusion, litigation strategy, or legal theory of that

attorney or the entity; and

c. Was prepared exclusively for civil or criminal litigation, for adversarial

administrative proceedings, in anticipation of reasonably predictable civil or

criminal litigation or adversarial administrative proceedings, or for guidance on

the legal risks, strengths, and weaknesses of an action of a public entity.

7. "Investigatory work product" means records obtained, compiled, or prepared by a

public entity in an effort to monitor and enforce compliance with the law or an order.

Investigatory work product must be considered active as long as it is related to

monitoring and enforcement activity conducted with a reasonable good-faith belief that

it will lead to enforcement of the law or an order the public entity is charged by statute

or other law with monitoring and enforcing.

8. Following the final completion of the civil or criminal litigation or the adversarial

administrative proceeding, including the exhaustion of all appellate remedies, attorney

work product must be made available for public disclosure by the public entity, unless

another exception to section 44-04-18 applies or if disclosure would have an adverse

fiscal effect on the conduct or settlement of other pending or reasonably predictable

civil or criminal litigation or adversarial administrative proceedings, or the attorney

work product reflects mental impressions, opinions, conclusions, or legal theories

regarding potential liability of a public entity.

9. A governing body may hold an executive session under section 44-04-19.2 to discuss

negotiating strategy or provide negotiating instructions to its attorney or other

negotiator regarding a pending claim, litigation, adversarial administrative proceedings,

or contracts, which are currently being negotiated or for which negotiation is

reasonably likely to occur in the immediate future. An executive session may be held

under this subsection only when an open meeting would have an adverse fiscal effect

on the bargaining or litigating position of the public entity. A record revealing

negotiation strategy or instruction under this section is exempt. Drafts of contracts or

agreements subject to negotiations are exempt but only for so long as release would

have an adverse fiscal effect on the public entity, unless the records are otherwise

exempt or confidential.

10. Nothing in this section may be construed to waive any attorney-client privilege of a

public entity as defined in subdivision c of subsection 13 of section 44-04-17.1

regarding matters that do not pertain to public business.

Page No. 18

11. A settlement agreement between a public entity and another party is exempt from

disclosure until it has been fully executed and accepted by all concerned parties

unless the records are otherwise exempt or confidential. In the case of multiple

settlement agreements involving multiple parties involved in the same incident or

undertaking, a settlement agreement is exempt until settlement agreements have been

fully executed by all concerned parties unless the records are otherwise exempt or

confidential.

12. Unless subject to subsection 6 of section 44-04-18, active litigation records are exempt

from section 44-04-18. For purposes of this subsection, "active litigation records"

means records obtained, compiled, or prepared by a public entity or the attorney

representing a public entity for the purpose of litigation unless the records already

have been filed publicly or the litigation is completed.

44-04-19.2. Confidential or closed meetings.

1. A governing body may hold an executive session to consider or discuss closed or

confidential records.

2. Unless a different procedure is provided by law, an executive session that is

authorized by law may be held if:

a. The governing body first convenes in an open session and, unless a confidential

meeting is required, passes a motion to hold an executive session;

b. The governing body announces during the open portion of the meeting the topics

to be discussed or considered during the executive session and the body's legal

authority for holding an executive session on those topics;

c. The executive session is recorded under subsection 5;

d. The topics discussed or considered during the executive session are limited to

those for which an executive session is authorized by law and that have been

previously announced under this subsection; and

e. Final action concerning the topics discussed or considered during the executive

session is taken at a meeting open to the public, unless final action is otherwise

required by law to be taken during a closed or confidential meeting. For purposes

of this subsection, "final action" means a collective decision or a collective

commitment or promise to make a decision on any matter, including formation of

a position or policy, but does not include guidance given by members of the

governing body to legal counsel or other negotiator in a closed attorney

consultation or negotiation preparation session authorized in section 44-04-19.1.

3. The remainder of a meeting during which an executive session is held is an open

meeting unless a specific exemption is otherwise applicable.

4. The minutes of an open meeting during which an executive session is held must

indicate the names of the members attending the executive session, the date and time

the executive session was called to order and adjourned, a summary of the general

topics that were discussed or considered that does not disclose any closed or

confidential information, and the legal authority for holding the executive session.

5. All meetings of the governing body of a public entity that are not open to the public

must be recorded electronically or on audiotape or videotape. The recording must be

disclosed pursuant to court order under subsection 2 of section 44-04-18.11 or to the

attorney general for the purpose of administrative review under section 44-04-21.1.

The attorney general may not disclose to the public any recording received under this

subsection and must return the recording to the governing body upon completion of

the administrative review. The recording may be disclosed upon majority vote of the

governing body unless the executive session was required to be confidential.

Disclosure of the recording by a public servant except as provided in this subsection is

a violation of section 12.1-13-01. All recordings under this subsection must be retained

for a minimum of six months after the executive session that is the subject of the

recording.

Page No. 19

6. A public entity may sequester all competitors in a competitive selection or hiring

process from that portion of a public meeting wherein presentations are heard or

interviews are conducted.

44-04-19.3. Open meetings exemption - Legislative caucuses.

A caucus of members of either house of the legislative assembly may meet in an executive

session that is not subject to section 44-04-19.2 if the meeting is not held on public property.

44-04-20. Notice of public meetings required - Exceptions - Schedule set by statute,

ordinance, or resolution.

1. Unless otherwise provided by law, public notice must be given in advance of all

meetings of a public entity as defined in section 44-04-17.1, including executive

sessions and meetings held remotely. Unless otherwise specified by law, resolution, or

ordinance, or as decided by the public entity, notices required by this section need not

be published.

2. The notice required in this section must contain the date, time, and location of the

meeting and, if practicable, the topics to be considered. However, the lack of an

agenda in the notice, or a departure from, or an addition to, the agenda at a meeting,

does not affect the validity of the meeting or the actions taken thereat. The notice also

must contain the general subject matter of any executive session expected to be held

during the meeting. For meetings to be held by electronic means, the location of the

meeting is the electronic address and any other information necessary to allow the

public to join or view the electronic meeting as required under section 44-04-19.

3. If the governing body holds regularly scheduled meetings, the schedule of these

meetings, including the aforementioned notice information, if available, must be filed

annually with the secretary of state for state-level bodies or 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 bodies, and the county auditor or designee of the county for all

other bodies or the schedule must be posted on the public entity's website. This

schedule must be furnished to anyone who requests the information. When

reasonable and practicable, a governing body of a public entity should attempt to set a

regular schedule for its meetings by statute, ordinance, or resolution. This subsection

does not apply to meetings of the legislative assembly or any committee thereof. Filing

a yearly schedule of upcoming meetings does not relieve a public entity from its

obligation to post an agenda for each meeting as required in subsections 2 and 4.

4. The notice required in this section must be posted at the principal office of the

governing body holding the meeting, if such exists, and at the location of the meeting

on the day of the meeting. In addition, unless all the information contained in the notice

was previously filed with the appropriate office under subsection 3, the notice must be

filed in the office of the secretary of state for state-level bodies or 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 bodies, the county auditor or designee of the county

for all other bodies. If the public entity has a website, notice also must be posted on

the public entity's website. This subsection does not apply to meetings of the

legislative assembly or any committee thereof.

5. The governing body's presiding officer has the responsibility of assuring that public

notice of a meeting's date, time, and location, is given at the same time as such

governing body's members are notified, and that this notice is available to anyone

requesting such information. As soon as an agenda is prepared for a meeting with the

information required in subsection 2 and given to members of the governing body, the

agenda must be posted at the locations as required by subsection 4 and given to

anyone requesting the information. When a request is made for notice of meetings, the

request is effective for one year unless a different time period is specified.

6. In the event of emergency or special meetings of a governing body, the person calling

such a meeting shall, in addition to the notices in subsection 4, also notify the public

entity's official newspaper, if any, and any representatives of the news media which

Page No. 20

have requested to be so notified of such special or emergency meetings, of the time,

place, date, and topics to be considered at the same time as such governing body's

members are notified. If the public entity does not have an official newspaper, then it

must notify the official newspaper of the county where its principal office or mailing

address is located. Topics that may be considered at an emergency or special meeting

are limited to those included in the notice.

7. A committee of an institution under the authority of the state board of higher education,

in lieu of the notice requirements in this section, may file in the office of the president

of the institution the name, address, and telephone number of a person who may be

contacted to obtain specific times, dates, and locations of any meetings of that

committee or to request specific notification of each meeting of that committee.

8. The attorney general shall prepare general guidelines to assist public entities in

following the provisions of this section.

9. This section is violated when a notice is not provided in substantial compliance with

this section.

44-04-21. Open voting at public meetings required - Results recorded in minutes.

1. Unless otherwise specifically provided by law, all votes of whatever kind taken at any

public meeting governed by the provisions of section 44-04-19 must be open, public

votes, and all nonprocedural votes must be recorded roll call votes, with the votes of

each member being made public at the open meeting. Procedural votes must be

recorded roll call votes upon the request of any member of a governing body holding a

meeting subject to this section. As used in this section, "nonprocedural" should be

broadly interpreted and includes all votes that pertain to the merits of the matter before

the governing body.

2. Minutes must be kept of all open meetings and are records subject to section

44-04-18. The minutes must include, at a minimum:

a. The names of the members attending the meeting;

b. The date and time the meeting was called to order and adjourned;

c. A list of topics discussed regarding public business;

d. A description of each motion made at the meeting and whether the motion was

seconded;

e. The results of every vote taken at the meeting; and

f. The vote of each member on every recorded roll call vote.

Notwithstanding subsection 8 of section 44-04-18, the disclosure of minutes kept

under this subsection may not be conditioned on the approval of the minutes by the

governing body.

3. Subsection 1 does not apply to a nonprocedural vote relating to the consideration of

an amendment by a legislative committee or the legislative assembly during a

legislative session, unless otherwise required by legislative rule.

44-04-21.1. Administrative review procedure.

1. Any interested person may request an attorney general's opinion to review a written

denial of a request for records under section 44-04-18, a denial of access to a meeting

under section 44-04-19, or other alleged violation of section 44-04-18, 44-04-19,

44-04-19.2, 44-04-20, or 44-04-21 by any public entity other than the legislative

assembly or any committee thereof. A request made under this section must be made

within thirty days of the alleged violation, except that a request based on allegations

that a meeting occurred without the notice required by section 44-04-20, must be

made within ninety days of the alleged violation. In preparing an opinion under this

section, the attorney general has discretion to obtain and review a recording made

under section 44-04-19.2. The attorney general may request and obtain information

claimed to be exempt or confidential for the purpose of determining whether the

information is exempt or confidential. Any such information may not be released by the

attorney general and may be returned to the provider of the information. The attorney

general shall issue to the public entity involved an opinion on the alleged violation,

Page No. 21

which may be a summary opinion, unless the request is withdrawn by the person

requesting the opinion or a civil action has been filed involving the possible violation.

The attorney general may decline to issue an opinion if the person requesting the

opinion has made more than one request within the last thirty days or more than five

requests for opinions in twelve months. If the request pertains to a public entity as

defined in subdivision c of subsection 13 of section 44-04-17.1, the opinion must be

issued to the public entity providing the public funds. In any opinion issued under this

section, the attorney general shall base the opinion on the facts given by the public

entity.

2. If the attorney general issues a written opinion concluding that a violation has

occurred, the public entity has seven days after the opinion is issued, regardless of

whether a civil action is filed under section 44-04-21.2, to disclose the record, to issue

a notice of a meeting that will be held within a reasonable time to correct the violation,

or to take steps to correct any other violation. If the public entity fails to take the

required action within the seven-day period and the person requesting the opinion

prevails in a civil action brought under section 44-04-21.2, the person must be

awarded costs, disbursements, and reasonable attorney's fees in the action and on

appeal. The attorney general may require officials of the public entity at issue in the

opinion to obtain mandatory training by a certain date. The consequences for failing to

comply with an attorney general's opinion issued under this section will be the same as

for other attorney general's opinions, including potential personal liability for the person

or persons responsible for the noncompliance.

3. If a state-level public entity as defined in subdivision a of subsection 13 of section

44-04-17.1 does not comply in full with the attorney general's opinion, and a civil action

is brought under section 44-04-21.2 or is reasonably predictable, the entity, at its sole

cost and expense, shall retain separate counsel who has been approved and

appointed by the attorney general as a special assistant attorney general to represent

the entity in that action.

44-04-21.2. Remedies for violations and enforcement procedure.

1. A violation of section 44-04-18, 44-04-19, 44-04-19.2, 44-04-20, or 44-04-21 may be

the subject of a civil action brought by an interested person or entity. For an alleged

violation of section 44-04-18, the complaint must be accompanied by a dated, written

request for the requested record. If a court finds that any of these sections have been

violated by a public entity, the court may award declaratory relief, an injunction, a writ

of prohibition or mandamus, costs, disbursements, and reasonable attorney's fees

against the entity. For an intentional or knowing violation of section 44-04-18,

44-04-19, 44-04-19.2, 44-04-20, or 44-04-21, the court may also award damages in an

amount equal to one thousand dollars or actual damages caused by the violation,

whichever is greater. An action under this subsection must be commenced within sixty

days of the date the person knew or should have known of the violation or within thirty

days of issuance of an attorney general's opinion on the alleged violation, whichever is

later. Venue for an action is in the county where the entity has its principal office or, if

the entity does not have a principal office within the state, in Burleigh County.

2. Any action that is a product of a violation of section 44-04-19, 44-04-20, or 44-04-21 is

voidable by a court in a civil action authorized by this section.

3. The remedies provided in this section are not available if a violation of section

44-04-18, 44-04-19, 44-04-19.2, 44-04-20, or 44-04-21 has been corrected before a

civil action is filed and no person has been prejudiced or harmed by the delay. An

interested person or entity may not file a civil action under this section seeking

attorney's fees or damages, or both, until at least three working days after providing

notice of the alleged violation to the chief administrative officer for the public entity.

This subsection does not apply if the attorney general has found under section

44-04-21.1, on a prior occasion, that the public entity has violated section 44-04-18,

44-04-19, 44-04-19.2, 44-04-20, or 44-04-21.

Page No. 22

44-04-21.3. Attorney general referral and criminal penalties.

The attorney general may refer to the appropriate state's attorney any public servant as

defined in section 12.1-01-04 who has been found in more than one opinion issued pursuant to

section 44-04-21.1 to have violated section 44-04-18, 44-04-19, 44-04-19.2, 44-04-20, or

44-04-21. A public servant as defined in section 12.1-01-04 who knowingly violates section

44-04-18, 44-04-19, 44-04-19.2, 44-04-20, or 44-04-21 is guilty of an offense under section

12.1-11-06.

44-04-22. Conflict of interest law.

A person acting in a legislative or quasi-legislative or judicial or quasi-judicial capacity for a

political subdivision of the state who has a direct and substantial personal or pecuniary interest

in a matter before that board, council, commission, or other body, must disclose the fact to the

body of which that person is a member, and may not participate in or vote on that particular

matter without the consent of a majority of the rest of the body.

44-04-23. Year 2000 information requests - Use - Exceptions.

Repealed by S.L. 2009, ch. 125, § 4.

44-04-24. Security system plan - Disaster and cybersecurity information - Exemption.

1. A security system plan kept by a public entity, and records regarding disaster

mitigation, preparation, response, vulnerability, or recovery, or for cybersecurity

planning, mitigation, or threat, are exempt from the provisions of section 44-04-18 and

section 6 of article XI of the Constitution of North Dakota.

2. As used in this section:

a. "Critical infrastructure" means public buildings, systems, including

telecommunications centers and computers, power generation plants, dams,

bridges, and similar key resources, and systems related to utility services, fuel

supply, energy, hazardous liquid, natural gas, or coal, whether physical or virtual,

so vital to the state that the incapacity or destruction of these systems would have

a debilitating impact on security, state economic security, state public health or

safety, or any combination of those matters.

b. "Security system plan" includes:

(1) Records, information, photographs, audio and visual presentations,

schematic diagrams, surveys, recommendations, communications, or

consultations relating directly to the physical or electronic security of a public

facility, or any critical infrastructure, whether owned by or leased to the state

or any of its political subdivisions, or any privately owned or leased critical

infrastructure if the plan or a portion of the plan is in the possession of a

public entity;

(2) Information relating to cybersecurity defenses, or threats, attacks, attempted

attacks, and vulnerabilities of cyber system operations relating directly to the

physical or electronic security of a public facility, or any critical infrastructure,

whether owned by or leased to the state or any of its political subdivisions,

or any privately owned or leased critical infrastructure if the information is in

the possession of a public entity;

(3) Threat assessments;

(4) Vulnerability and capability assessments conducted by a public entity, or any

private entity;

(5) Threat response plans; and

(6) Emergency evacuation plans.

3. This exemption applies to security system plans received by a public entity before, on,

or after March 20, 2003.

4. Nothing in this section may be construed to limit disclosure required for necessary

construction, renovation, or remodeling work on a public building. Disclosure under

this subsection does not constitute public disclosure.

Page No. 23

5. Records deemed exempt under this section and disclosed to another entity continue to

be exempt in the possession of the receiving entity.

44-04-25. Public health and security plans - Exemption.

Any plans and only those portions of the records, information, surveys, communications,

and consultations used to produce the plans relating to protection of the public or public officials

against threats of violence or other harm are exempt from the provisions of section 44-04-18

and section 6 of article XI of the Constitution of North Dakota.

44-04-26. Security system plan - Public health and security plans - Exemption from

public meeting requirements.

Those portions of a meeting which would reveal a security system plan, a public health or

security plan, or a portion of any such plan, made exempt by section 44-04-24 or 44-04-25, are

exempt from section 44-04-19 and section 5 of article XI of the Constitution of North Dakota.

44-04-27. Computer passwords and security information - Confidential.

Security codes, passwords, combinations, or security-related plans used to protect

electronic information or to prevent access to computers, computer systems, or computer or

telecommunications networks of a public entity are confidential.

44-04-28. Social security numbers - Confidential.

1. Social security numbers in the possession of a public entity are confidential. However,

social security numbers may be released as authorized in this section or by other state

or federal law.

2. A social security number may be released:

a. For purposes of participation in retirement or other employment benefits

programs;

b. As authorized by the individual to whom the social security number is assigned,

that individual's lawful agent or guardian, or by order of a court; or

c. To another public entity or its agents, employees, or contractors if disclosure is

necessary for the receiving entity to perform its duties and responsibilities. The

receiving governmental entity and its agents, employees, and contractors shall

maintain the confidential status of the numbers.

44-04-29. Client files at the university of North Dakota school of law - Confidential.

Information in the files of private clients receiving legal services through the clinical

education program of the university of North Dakota school of law is confidential unless the

information has been requested and is properly obtainable through applicable discovery rules.

44-04-30. Records of the state fire marshal, fire departments, and rural fire protection

districts confidential.

1. a. An investigation record of the state fire marshal, a fire department, or a rural fire

protection district is confidential until the investigation:

(1) Is closed and not referred for further criminal investigation or prosecution; or

(2) The criminal investigation is no longer active under section 44-04-18.7.

b. This subsection does not restrict the release of the name and identifiable

biographical information of a child under section 12.1-35-03.

2. Standard operating procedures written for emergency response, prefire action plans,

plans of a building, pipeline, electrical system, or any other infrastructure plan in the

possession of the state fire marshal, a fire department, or rural fire protection district

are exempt from section 44-04-18.

3. Individually identifiable health information obtained by the state fire marshal, a fire

department, or a rural fire protection district is confidential.

4. An image of a victim of a fire is an exempt record.

Page No. 24

44-04-31. Business associate - Duty to protect information.

1. As used in this section, "business associate" has the meaning set forth in title 45,

Code of Federal Regulations, part 160, section 103.

2. If a public entity is acting as a business associate of another public entity, the entity

acting as a business associate shall comply with all the requirements applicable to a

business associate under title 45, Code of Federal Regulations, part 164, section 504,

subsection e, paragraph 2.

44-04-32. Animal feeding operation record requests.

The department of environmental quality shall keep a written record of each individual who

requests information and the type of information requested regarding an animal feeding

operation permit. Within seven business days of receiving the request, the department shall

provide written notice to the owner and operator of the animal feeding operation describing the

type of information that has been requested and the name and address of the requester. If an

individual makes inquiries on more than three files in any one request, the department shall

charge the individual a fee sufficient to cover the cost of mailing the notice to the owners and

operators whose files are being examined and a fee for copying the records as allowed under

section 44-04-18.

44-04-33. Reservation of powers not granted to the federal government.

Pursuant to the tenth amendment to the Constitution of the United States, public officials

and employees in this state need not carry out or comply with an executive order of the

president of the United States, a regulation of a federal agency or department, or a federal

statute infringing on powers reserved to the several states.

Page No. 25