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North Dakota

What is the law?

Binding, on-point law (about)

The North Dakota Open Records Law states that "[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." N.D. Cent. Code Ann. § 44-04-18(11).

Advisory sources (about)

A 2008 North Dakota Attorney General Opinion [1] addressed the confidentiality of particular public records, and concluded that "when a confidential record is required [to be disclosed to the Agriculture Commissioner], the record is thereafter in the public domain and is no longer confidential." N.D. Att'y. Gen., LETTER OPINION 2008-L-20.

In an advisory document, however, citing the Open Records Law quoted above and the New York case, County of Suffolk, New York v. First Am. Real Estate Solutions, 261 F.3d 179, 183 (2d Cir. 2001), the Attorney General advises that "state and local government entities are not [] precluded from claiming copyright protection in their original works. Any use of a copyrighted record without the permission of the public entity, except for 'fair use' as defined in the Copyright Act, is prohibited." (footnotes omitted). Office of Attorney General, Open Records Manual, page 13.

Public records law (about)

In 1977, North Dakota amended their constitution to say, "Unless otherwise provided by law, all records of public or governmental bodies, boards, bureaus, commissions, or agencies of the state or any political subdivision of the state, or organizations or agencies supported in whole or in part by public funds, or expending public funds, shall be public records, open and accessible for inspection during reasonable office hours." N.D. Const. art. XI, § 6. The North Dakota public records law was first enacted in 1957 and may be found at N.D. Cent. Code Ann. § 44-04-18.

Does the public records law restrict the use of disclosed records?

The North Dakota public records law does not restrict records based on the intended use of the requestor and the Attorney General Citizen's Guide says that, "You have a right to open records, regardless of your identity or purpose." North Dakota Attorney General, A Citizen's Guide to North Dakota's Open Records and Open Meeting Laws. While all records not specifically exempted must be disclosed under the Open Records Law, see N. States Power Co. v. N. Dakota Pub. Serv. Comm'n, 502 N.W.2d 240, 243 (N.D. 1993), the subsequent use of particular records may, however, be restricted by other aspects of North Dakota law, in particular, trade secret law. N.D. Op. Att'y Gen. 85-24, at 3 (1985).

Specifics and examples (about)

Status Applies to... Based on?
Copyrightable by statute Intellectual property of the Department of Commerce Division of Tourism N.D. Cent. Code Ann. § 54-34.4-05
Copyrightable by statute Computer software programs copyrighted by a public entity N.D. Cent. Code Ann. § 44-04-18.5 ("A public entity may enter into agreements for the sale, licensing, and distribution of its licensed, patented, or copyrighted computer software programs.")
Unclear GIS property map data available on the Grand Forks County website [2] Grand Forks County, ND, GIS - Property Maps Disclaimer, stating both that "Information on this site is in the public domain and may be copied without permission" and "Maps and data are to be used for reference purposes only."

Additional things to consider (about)

North Dakota does not restrict public records requests based on the status of the requestor, and a statute which formerly restricted school board records requests to taxpayers within a school district was recently rewritten to eliminate that requirement. See N.D. Cent. Code Ann. § 15.1-07-25; see generally Reporters Committee for Freedom of the Press, Open Government Guide: Access to Public Records and Meetings in North Dakota.

North Dakota law states that "[a]ll records made or received by or under the authority of or coming into the custody, control, or possession of public officials of this state in the course of their public duties are the property of the state" and authorizes the return of records which have escaped official custody. N.D. Cent. Code Ann. § 54-46-07.

Some public records in the custody of the State Historical Society of North Dakota are labeled with a disclaimer stating that "[p]ublic records are not subject to copyright restrictions." See, e.g. State Historical Society of North Dakota, State Agencies - Banking and Financial Institutions - #30587. The general copyright statement provided by the archives, however, does not address public records specifically.

Where else to go




Attorney General Opinions