The North Dakota Attorney General's office has issued a summary opinion clarifying that Harlow’s School Bus Service, a company contracting with the Mandan Public School District, is not subject to the state's open records law. This determination means the company did not violate state law by not responding to an open records request, as it is not considered a public entity under the relevant statute.
The opinion came in response to a request from S. Paul Jordan, who asked the Attorney General's office to determine whether Harlow’s School Bus Service had violated North Dakota Century Code (N.D.C.C.) § 44-04-18. This specific statute governs access to public records in North Dakota, generally ensuring that records held by governmental bodies and public entities are accessible to the public. The core of Jordan's inquiry was whether Harlow's, in its capacity providing essential busing services to students within the Mandan Public School District, should be considered a public entity and thus obligated to comply with the transparency requirements of the open records law.
The Attorney General's office, after reviewing the circumstances, concluded that Harlow’s School Bus Service does not fall under the definition of a public entity for the purposes of open records law. This conclusion was based on the nature of the company’s contractual relationship with the Mandan Public School District. Harlow’s provides busing services to the district under a contract, and critically, these services are offered "at fair market value."
The opinion further noted that this finding aligns with previous interpretations by the Attorney General's office. A recent opinion, dealing with "nearly identical circumstances," had already established a precedent: if a private entity provides services to a school district or other governmental body at fair market value, it generally retains its private status and is not transformed into a public entity simply by virtue of its contract. This distinction is crucial for understanding the scope of public transparency laws in North Dakota.
Because Harlow’s School Bus Service is not classified as a public entity according to state law and the Attorney General's interpretation, it is therefore not subject to the provisions of the open records law, N.D.C.C. § 44-04-18. Consequently, the Attorney General's opinion states that no violation of the open records law occurred when Harlow’s did not respond to the request.
For residents of Bismarck and Mandan, particularly those with children attending Mandan Public Schools, this opinion clarifies the boundaries of public access to information concerning contractors. While public schools and districts like Mandan Public School District are unequivocally subject to open records laws, the private companies they contract with for services like student transportation may not be, provided their services are rendered at fair market value. This impacts how citizens can access information regarding the operations and financials of these contracted services, drawing a line between the transparency requirements for public bodies and their private partners operating commercially. The Attorney General's ruling reinforces the principle that private businesses, even when performing public services for a school district, generally do not lose their private status, and thus their exemption from certain public disclosure requirements, when they operate on an arms-length, fair market value basis.
