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February 9, 2018

Request: (1) Did the City of Bismarck violate the open records law by refusing to provide requested records on the basis they constituted active criminal investigative and intelligence information?  (2) Did the City provide a reasonable estimate of the costs associated with reviewing and redacting records?

Conclusion:  The City of Bismarck received an expansive record request for police department records relating to pipeline protest activities. The city estimated it would take approximately 225 hours to review and redact the records. The requester complained that the estimate was excessive. The requester then submitted a new request for a narrower date range. The city declined to provide records under the new request on the basis the requested records constituted active criminal and investigative records. The city explained that at the time of the request, there were DAPL-related criminal cases open or subject to appeal in Morton county and the requested records were email communications between law enforcement agencies sharing criminal intelligence related to DAPL events. (1) It is  not a violation of the open records law to withhold such information. (See also NDAG Opinion 2017-O-05.) A public entity is allowed to charge up to $25 per hour, after the initial hour, for the time required to review and redact exempt or confidential from the records. (2) The city’s estimate of costs to review and redact the responsive records was based on legally allowable charges and did not violate the law.


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