The North Dakota Attorney General’s office has issued a summary opinion confirming that Harlow’s School Bus Service did not violate state open records law, following a request made by S. Paul Jordan. The opinion addresses whether the bus service was subject to N.D.C.C. § 44-04-18, the state's open records statute, after not responding to a records request.
Harlow’s School Bus Service holds a contract with the Mandan Public School District, providing busing services to students in the area. The core of the inquiry centered on whether this contractual relationship made Harlow's a public entity, thereby subjecting it to the state's transparency requirements.
According to the Attorney General's opinion, Harlow’s School Bus Service is not considered a public entity under the law. This conclusion stems from the fact that the company provides its busing services to the Mandan Public School District at fair market value. State law distinguishes between entities that receive public funds as a subsidy or become an integral part of a public agency's operations, and those that operate as independent contractors providing services at competitive market rates. In this instance, the Attorney General's office determined that Harlow's fell into the latter category.
The Attorney General's opinion cited a recent precedent from the same office, which involved nearly identical circumstances and reached a similar conclusion. That prior opinion established that when a private entity contracts with a public school district, such as the Mandan Public School District, and offers services at fair market value, it does not automatically become subject to the same open records obligations as the district itself. This distinction is crucial for understanding how public services are delivered through private partnerships in cities like Mandan and Bismarck.
Because Harlow’s School Bus Service is not classified as a public entity, the Attorney General's opinion stated that it is not subject to North Dakota’s open records law. Consequently, the Attorney General concluded that no violation of the open records law occurred in this specific instance when Harlow's did not respond to the request made by S. Paul Jordan.
For residents of Mandan and Burleigh and Morton counties, this ruling clarifies the scope of the state’s open records law as it applies to private companies performing services for public bodies. It establishes that citizens seeking information related to services provided by private contractors to local entities, such as the Mandan Public School District, may need to direct their requests to the public entity itself, rather than the private company, if the contractor operates at fair market value. This ensures that transparency expectations are properly set when public services rely on private sector support across the Bismarck and Mandan areas.
The opinion underscores that while public bodies like school districts are fully accountable under open records statutes, private businesses that contract with them under fair market value terms maintain a separate legal standing regarding their internal records. This distinction ensures that private sector efficiency can be utilized by public services while maintaining specific lines of accountability and transparency as defined by state law. The Attorney General's office provides these summary opinions to help clarify the application of state statutes in specific scenarios, offering guidance to public bodies, private entities, and citizens alike on complex legal questions that arise in the delivery of services.
