1997 Open Records Changes - Senate Bill 2228

Copies of open records must be mailed upon request, and the request can even be made over the phone. Thus, if someone calls and asks for a copy of a record you have no authority to insist that the person come in personally. You can, however, charge a reasonable fee, payable in advance, for the copy that is to be provided or mailed, including postage costs and costs for any other materials (for example, envelopes), and can charge for the labor for making the copy, but not the cost for actually searching for the record. These latter provisions are now in the law although they were formerly followed via Attorney General's opinions.

Departments which routinely are asked for records should have a policy on what the charges will be in such situations. For example, are you only going to charge for a certain xerox charge or are you going to charge for labor, postage and materials?

You don't have to create a file where none previously existed. For example, you would not have to electronically create a computer database and search if the file had not already previously been created.

You do not have to provide a party requesting records access to the computer terminal itself.

If there is litigation or adverse administrative proceedings pending, the party or the party's attorney requesting the open records must use the applicable discovery rules. This has been a problem previously when there has been litigation and an attorney for a party or the party has requested information under the Open Records Laws and refused to use the legal discovery rules. Public employees should refer the party or their attorney in that situation to this office or the attorney handling the matter on behalf of NDSU.

This provision would probably not apply to the University's informal internal appeal processes (e.g., a special review committee for nonrenewals or staff personnal board appeal) prior to the point at which they are formally heard by an administrative hearings officer or the Board of Higher Education because there are no applicable discovery rules. It would seem, though, to apply to a formal proceeding like a Standing Committee on Faculty Rights appeal. However, the same advice applies and when information is requested by the employee or employee's attorney when there is an adverse proceeding, this should be discussed with counsel representing the University first.

If you deny a copy of a record, you must provide the legal authority for the exemption and this must be in writing if requested by the party requesting the allegedly open record. It is probably the better procedure to, if the information is denied, always provide a written statement to that effect stating the legal authority. This prevents a situation where someone says they demanded such a writing and it wasn't provided.

You don't have to turn over preliminary drafts of documents until:

1. The final draft is completed;
2. The document is given to a public body or discussed at an open meeting; or
3. Work on the preliminary draft is stopped (for example, no final will be prepared), whichever occurs first.


This has been a problem in the past where documents were in draft form but were not finally given to a board or public body. Thus, when working on preliminary drafts it is advisable to specifically put the word "draft" on the document to aid in its identification.

If you are preparing a document for a public body that has been requested by that body, you do not have to turn over a document until it is:

1. Mailed to that body;
2. Provided to a member of that body;
3. Or until the next meeting of that body, whichever occurs first.


Thus, if the document will not be considered at the next meeting, you may want to keep the document in draft form if you don't want to turn it over until a later meeting. However, simply labelling a document as a "draft" when it is in fact a final will not be sufficient to shield it from the open record law.

If a record also contains confidential information in addition to the open record information, then you cannot deny access to the open portion but you may redact or delete the confidential portion.

Public officials cannot sign an agreement prohibiting disclosure or comment on an open record. This situation has come up in settlement agreements in actions against the University where the settlement agreements have to be open records. This differs from settlements between nonpublic parties in private litigation where settlement agreements can be kept confidential.

You can disclose confidential records to law enforcement or for debt collection purposes where the debt is owed to the University.

You have immunity from prosecution for wrongfully turning over confidential information if disclosure is pursuant to subpoena or court order. Turning over confidential information when you should not, and not pursuant to subpoena or court order, can be a class C felony under state law. When in doubt, check!

Now, "personal" information in an employee's personnel record is exempt. Previously, this exempt information was limited to medical and employee assistance records only. "Personal", in this context, means: a person's home address, home telephone number, photograph, medical information, motor vehicle operator's identification number, social security number, payroll deduction information, the name, address, phone number, date of birth, and social security number 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.

Law enforcement, including campus police, can provide assurances of confidentiality to informants as this is now specifically in the law.

Computer software programs that are licensed by the University from other parties can now be exempt. Previously, this may have also been exempt as proprietary or trade secret information, but now it is clear that a program licensed from someone else by the University is not a public record.

A list of children's names, addresses or phone numbers is exempt.

The process available to a requester of an open record who has been denied access to the open record has been expanded to provide for that party to request an Attorney General's opinion which must be provided within 30 days to the public entity that denied access to the document. If the Attorney General's opinion provides that the document is open, then the public entity has 7 days to disclose the document. There are also expanded provisions for civil actions and for damages and attorney's fees to be awarded.

Prepared by Rick Johnson, 7/97.