Pat Seaworth, NDUS Legal Counsel

The 1997 Legislative Assembly enacted legislation clarifying laws governing public meetings and records. The legislation, SB 2228, is not intended to create new law; rather, it codifies court decisions and attorney general opinions interpreting existing laws. SB 2228 is designed to improve compliance by establishing clear rules.

All meetings of public entities in North Dakota must be open to the public, absent a statutory exception permitting a closed meeting. SB 2228 defines the entities subject to the law to be "any group of persons, regardless of membership, acting collectively pursuant to authority delegated to that group by the governing body." Therefore, the term includes a board of higher education committee or subcommittee and all groups exercising board-delegated authority, such as a presidential search committee constituted to screen candidates and make a recommendation to the board. Faculty senates or other campus legislative bodies (and official committees and subcommittees of these entities) are also subject to the open meetings law.

The open meetings law does not apply to campus groups that are not delegated authority by the board of higher education. The law does not apply to a president's cabinet, department staff meetings, meetings involving an employee or group of employees with a supervisor, or other "informal" groups not created and delegated authority by the board of higher education.

It is unlawful for a public entity subject to the open meetings law to deny anyone access to its meetings. Also, the entity must give written notice of its meetings, including the date, time and place of the meeting and the agenda. The notice must be posted by the main office of the entity (if one exists) and the meeting location. For telephone and video conferences, that means the location of a speakerphone or monitor where a member of the entity is participating. A state-level governing body that holds regularly scheduled meetings must file an annual meeting schedule, including meeting locations, dates and times, with the secretary of the state (or, if an annual schedule is not filed, the entity must file each meeting notice). College and university entities (e.g., a faculty senate or search committee) may file with the institution president the name, address and telephone number of a contact person who has meeting information in lieu of filing meeting schedules or notices with the secretary of state.

All groups subject to the open meetings law must keep official minutes, including names of members in attendance, discussion topics, motions made and a record of all votes. The minutes are public records, open to anyone who requests access or copies.

Laws defining what records are open to the public are also clarified by SB 2228. Except as otherwise specifically provided by law, all records of a public entity are public records, open and accessible for inspection and copying during regular office hours. The term records is broadly defined as recorded information of any kind that is in possession of a public entity or public employee or agent and received or prepared for use in connection with public business or containing information relating to public business. Preliminary drafts of working papers are considered public records.

Records that are confidential or exempt from application of the open records law include: confidential student records (defined by federal law); some law enforcement records; attorney work product; trade secret, proprietary and private financial information (which include proprietary information received in connection with or generated by grants and contracts); and certain economic development records. Also, SB 2228 includes a provision defining employee personal information that is exempt from the open records law, including: the employee's home address and phone number; photograph; all employee medical records; motor vehicle identification and social security numbers; payroll deduction information; information concerning dependents and emergency contacts; any credit, debit, or electronic fund transfer card number; and account numbers at banks or other financial institutions. All other employee personnel records are public and open for inspection or copying by anyone.

Anyone who asks is entitled to a copy of a public record, and the copy must be mailed upon request. A reasonable fee covering the actual cost of copying, staff time, equipment and postage (but not including time to locate or retrieve a record) may be charged, and payment may be required in advance. The law does not require a public entity to create a record, sort information or compile data in a form different than that kept by the entity. If a record or file contains both public and confidential information, a records custodian must permit inspection and copying of the information that is not confidential. A denial of requested access to or a copy of a public record must state the legal authority and, if requested, be made in writing.

SB 2228 establishes a new process to resolve disputes concerning access to meetings or records. Any person denied access may request an attorney general's opinion. If the attorney general concludes that a violation occurred, the public entity has seven days to disclose the record, or take corrective action to cure a violation of the open meetings law. An interested party may also file a civil action for declaratory relief or an injunction. Furthermore, damages and attorney's fees may be awarded, if the party first gives the public entity three days' notice and the violation is not corrected before the action is filed.

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