The North Dakota Attorney General’s office has issued a summary opinion clarifying that Harlow’s School Bus Service, a contractor for the Mandan Public School District, is not considered a public entity and therefore is not subject to the state’s open records law. This ruling, directed to the Mandan Public School District, outlines that the private busing company is not required to respond to requests made under N.D.C.C. § 44-04-18.
The opinion stemmed from an inquiry by S. Paul Jordan, who had formally requested a determination from the Attorney General’s office. Jordan specifically asked whether Harlow’s School Bus Service had violated N.D.C.C. § 44-04-18 by not providing a response to an open records request. The Attorney General’s office was tasked with assessing the legal standing of the contractor in relation to state transparency statutes.
Harlow’s School Bus Service currently holds a contract with the Mandan Public School District to provide busing services for its students. A crucial element in the Attorney General’s analysis was the nature of this contractual agreement: the services are furnished "at fair market value." This detail proved decisive in distinguishing the company’s status under North Dakota law.
The Attorney General’s office supported its current finding by referencing a prior legal interpretation. A "recent opinion from this office," dealing with "nearly identical circumstances," had previously concluded that a private entity providing services to a school district at fair market value does not meet the criteria to be classified as a public entity. This established precedent guided the Attorney General’s decision regarding Harlow’s.
Under North Dakota law, the open records statute (N.D.C.C. § 44-04-18) generally mandates that public entities provide access to certain government records upon request. However, because Harlow’s School Bus Service, by virtue of its fair market value contract, is not deemed a public entity, it falls outside the scope of this requirement. The legal framework differentiates between public bodies, which are subject to these disclosure rules, and private companies operating under standard commercial terms with public agencies.
Consequently, the Attorney General’s opinion unequivocally states that "no violation of the open records law occurred in this instance." This finding means that Harlow’s School Bus Service was within its legal rights not to respond to the open records request. For residents of Mandan and the broader Morton County, this opinion clarifies the limits of public records access when services are outsourced to private companies, even when those services are integral to local public institutions like the school district. It underscores that the terms of engagement – specifically whether services are provided at fair market value – dictate the applicability of state transparency laws to private contractors.
