Section 33.1-24-01-16 - Availability of informationAll records related to this article not specifically protected by state or federal law must be made available to the public in accordance with the following provisions:
1.Definitions. For the purposes of this article: a. "Record" means any document, writing, photograph, sound or magnetic recording, drawing, or other similar thing by which information has been preserved, from which the information can be retrieved and copied, and which is, was, or is alleged to be possessed by the department. The term includes informal writings (such as drafts and the like) and also includes information preserved in a form which must be translated or deciphered by machine in order to be intelligible to humans. The term includes documents and the like which were created or acquired by the department, its predecessors, its officers, and its employees by use of state funds or in the course of transacting official business. However, the term does not include materials which are legally owned by a department officer or employee in that person's purely personal capacity. Nor does the term include materials published by nonstate organizations which are readily available to the public, such as books, journals, and periodicals available through reference libraries, even if such materials are in the department's possession.b. "Request" means a request to inspect or obtain a copy of one or more records.c. "Requester" means any person who has submitted a request to the department.2.Requests to which this section applies.a. This section applies to any written request received by the department whether or not it cites this availability of information section.b. Any written request to the department for existing records prepared by the department for routine public distribution, for example, pamphlets, copies of speeches, press releases, and educational materials must be honored. No individual determination is necessary in such cases, since preparation of the records for routine public distribution itself constitutes a determination that the records are available to the public.c. After June 26, 2018, no claim of business confidentiality may be asserted by any person with respect to information contained in cathode ray tube export documents prepared, used, and submitted under subdivision e of subsection 1 of section 33.1-24-02-25 and subsection 1 of section 33.1-24-02-27, and with respect to information contained in hazardous waste export, import, and transit documents, prepared, used, and submitted under sections 33.1-24-03-50 through 33.1-24-03-55, whether submitted electronically into the environmental protection agency's waste import export tracking system or in paper format.3.Requests which do not reasonably describe records sought. The department will make every reasonable effort to assist in the identification and description of records sought and to assist the requester in formulating a request. If a request is described in general terms (for example, all records having to do with a certain area), the department may communicate with the requester (by telephone when practicable) with a view toward reducing the administrative burden of processing a broad request and minimizing the fees payable by the requester. Such attempts will not be used as a means to discourage requests, but rather as a means to help identify with more specificity the records actually sought.4.Time allowed for issuance of initial determination.a. Except as otherwise provided in this section, not later than the tenth working day after the date of receipt of a request for records, the department shall issue a written determination to the requester stating which of the requested records will, and which will not, be released and the reason for any denial of a request. If the records are not known to exist or are not in the department's possession, the department shall so inform the requester. To the extent requested records which are in the department's possession are published by the department, the response may inform the requester that the records are available for inspection and where copies can be obtained.b. The period of ten working days must be measured from the date the request is first received and logged into the department.c. There must be excluded from the period of ten working days (or any extension thereof) any time which elapses between the date that a requester is notified by the department that the person's request does not reasonably identify the records sought, and the date that the requester furnishes a reasonable identification.d. There must be excluded from the period of ten working days (or any extension thereof) any time which elapses between the date that a requester is notified by the department that prepayment or assurance of payment of fees is required, and the date the requester pays (or makes suitable arrangements to pay) such charges.e. The department may extend the basic ten-day period established under subdivision a by a period not to exceed ten additional working days, by furnishing written notice to the requester within the basic ten-day period, stating the reasons for such extension and a date by which the office expects to be able to issue a determination. The period may be so extended only when absolutely necessary, only for the period required, and only when one or more of the following unusual circumstances require the extension: (1) There is a need to search and collect the requested records from field facilities or other establishments that are separate from the office processing the request;(2) There is a need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or(3) There is a need for consultation, which must be conducted with all practicable speed, with another division having a substantial interest in the determination of the request.f. Failure of the department to issue a determination within the ten-day period or any authorized extension constitutes final department action which authorizes the requester to commence an action in an appropriate state district court to obtain the records.5.Initial denials of requests.a. An initial denial of a request may be issued only for the following reasons: (1) The records requested are specifically protected by state or federal law; or(2) The records are deemed enforcement-sensitive.b. Each initial determination which denies, in whole or in part, a request for one or more existing located records must state that the requester may appeal the initial denial by sending a written appeal to the department within thirty days of receipt of the determination.6.Appeals from initial denials - Manner of making.a. Any person whose request for one or more existing, located department records has been denied, in whole or in part, by an initial determination may appeal that denial by addressing a written appeal to the department.b. An appeal should be mailed no later than thirty calendar days after the date the requester received the initial determination on the request. An untimely appeal may be treated either as a timely appeal or as a new request.c. The appeal letter must contain a reference to the subject line, the date of initial determination, and the name and address of the person who issued the initial denial. The appeal letter must also indicate which of the records to which access was denied are the subjects of the appeal.7.Appeal determination - By whom made. The department's legal counsel shall make one of the following legal determinations in connection with an appeal from the initial denial of a request for an existing, located record: a. The record must be disclosed;b. The record must not be disclosed because a statute or a provision of this section so requires; orc. The record is exempt from mandatory disclosure but legally may be disclosed as a matter of department discretion.8.Contents of determination denying appeal. A determination denying an appeal from an initial denial must be in writing, must state which of the exemptions apply to each requested existing record, and must state the reasons for denial of the appeal. A denial determination must also state the name and position of the department employee who directed that the appeal be denied. Such a determination must further state that the person whose request was denied may obtain de novo judicial review of the denial by complaint filed with the district court of the United States in the district in which the complainant resides, or in which the department's records are located. However, no determination denying an appeal may reveal the existence or nonexistence of records if identifying the mere fact of the existence or nonexistence of those records would reveal confidential business information, confidential personal information, or a confidential investigation. Instead of identifying the existence or nonexistence of the records, the determination must state that the appeal is denied because either the records do not exist or they are exempt from mandatory disclosure.9.Time allowed for issuance of appeal determination.a. Except as otherwise provided in this section, not later than the twentieth working day after the date of receipt of the informational request of an appeal from an initial denial of a request for records, the department's legal counsel shall issue a written determination stating which of the requested records (as to which an appeal was made) shall be disclosed and which shall not be disclosed.b. The period of twenty working days must be measured from the date an appeal is first received by the department.c. The department's legal counsel may extend the basic twenty-day period established under subdivision a by a period not to exceed ten additional working days, by furnishing written notice to the requester within the basic twenty-day period stating the reason for such extension and the date by which the office expects to be able to issue a determination. The period may be so extended only when absolutely necessary, only for the period required, and only when one or more of the following unusual circumstances require the extension: (1) There is a need to search for and collect the records from field facilities or other establishments that are separate from the office processing the appeal;(2) There is need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or(3) There is a need for consultation, which must be conducted with all practicable speed, with another division having a substantial interest in the determination of the request.d. No extension of the twenty-day period shall be issued under subdivision c which would cause the total of all such extensions to exceed ten working days.10.Failure to decide on appeal by deadline. Failure to decide if an appealed record must be disclosed by the deadline imposed in this section constitutes final agency action and the requester's right to judicial review.11.Fees - Payments - Waiver.a. Fees will be charged to requesters for searching for and producing requested records in accordance with department policy.b. Reduction or waiver of fee. The fee chargeable under department policy must be reduced or waived by the department if the department determines that a waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public. Reduction or waiver of fees must be considered (need not necessarily be granted) in connection with each request from a representative of the press or other communications medium or from a public interest group.N.D. Admin Code 33.1-24-01-16
Adopted by Administrative Rules Supplement 370, October 2018, effective 1/1/2019.Amended by Administrative Rules Supplement 2020-377, July 2020, effective 7/1/2020.General Authority: NDCC 23.1-04-03; S.L. 2017, ch. 199, § 1; 42 USC § 6926(b); 40 CFR § 271.21(e) (1)
Law Implemented: NDCC 23.1-04-03, 23.1-04-05; S.L. 2017, ch. 199, § 19; 40 CFR § 271.21(e)(2)