Open records and open meetings - Exemptions for attorney work product, attorney consultation, and negotiation preparation
N.D. Cent. Code § 44-04-19.1
in effect44-04-19.1. Open records and open meetings - Exemptions for attorney work product,
attorney consultation, and negotiation preparation.
1. Attorney work product is exempt from section 44-04-18. Attorney work product and
copies thereof shall not be open to public inspection, examination, or copying unless
specifically made public by the public entity receiving such work product.
2. Attorney consultation is exempt from section 44-04-19. That portion of a meeting of a
governing body during which an attorney consultation occurs may be closed by the
governing body under section 44-04-19.2.
3. Active investigatory work product is exempt from section 44-04-18.
4. "Adversarial administrative proceedings" include only those administrative proceedings
in which the administrative agency or institution of higher education acts as a
complainant, respondent, or decisionmaker in an adverse administrative proceeding.
This term does not refer to those instances in which the administrative agency or
institution acts in its own rulemaking capacity.
5. "Attorney consultation" means any discussion between the members of a governing
body and its attorney in instances in which the governing body seeks or receives the
attorney's advice regarding and in anticipation of reasonably predictable or pending
civil or criminal litigation or adversarial administrative proceedings or to receive its
attorney's advice and guidance on the legal risks, strengths, and weaknesses of an
action of a public entity which, if held in public, would have an adverse fiscal effect on
the entity. All other discussions beyond the attorney's advice and guidance must be
made in the open, unless otherwise provided by law. All statements made by a
participant or between participants during an executive session held for the purpose of
attorney consultation are exempt if the statements relate to the subject for which
attorney consultation was established. Mere presence or participation of an attorney at
a meeting is not sufficient to constitute attorney consultation.
6. "Attorney work product" means any document or record that:
a. Was prepared by an attorney representing a public entity or prepared at such an
attorney's express direction;
b. Reflects a mental impression, conclusion, litigation strategy, or legal theory of that
attorney or the entity; and
c. Was prepared exclusively for civil or criminal litigation, for adversarial
administrative proceedings, in anticipation of reasonably predictable civil or
criminal litigation or adversarial administrative proceedings, or for guidance on
the legal risks, strengths, and weaknesses of an action of a public entity.
7. "Investigatory work product" means records obtained, compiled, or prepared by a
public entity in an effort to monitor and enforce compliance with the law or an order.
Investigatory work product must be considered active as long as it is related to
monitoring and enforcement activity conducted with a reasonable good-faith belief that
it will lead to enforcement of the law or an order the public entity is charged by statute
or other law with monitoring and enforcing.
8. Following the final completion of the civil or criminal litigation or the adversarial
administrative proceeding, including the exhaustion of all appellate remedies, attorney
work product must be made available for public disclosure by the public entity, unless
another exception to section 44-04-18 applies or if disclosure would have an adverse
fiscal effect on the conduct or settlement of other pending or reasonably predictable
civil or criminal litigation or adversarial administrative proceedings, or the attorney
work product reflects mental impressions, opinions, conclusions, or legal theories
regarding potential liability of a public entity.
9. A governing body may hold an executive session under section 44-04-19.2 to discuss
negotiating strategy or provide negotiating instructions to its attorney or other
negotiator regarding a pending claim, litigation, adversarial administrative proceedings,
or contracts, which are currently being negotiated or for which negotiation is
reasonably likely to occur in the immediate future. An executive session may be held
under this subsection only when an open meeting would have an adverse fiscal effect
on the bargaining or litigating position of the public entity. A record revealing
negotiation strategy or instruction under this section is exempt. Drafts of contracts or
agreements subject to negotiations are exempt but only for so long as release would
have an adverse fiscal effect on the public entity, unless the records are otherwise
exempt or confidential.
10. Nothing in this section may be construed to waive any attorney-client privilege of a
public entity as defined in subdivision c of subsection 13 of section 44-04-17.1
regarding matters that do not pertain to public business.
11. A settlement agreement between a public entity and another party is exempt from
disclosure until it has been fully executed and accepted by all concerned parties
unless the records are otherwise exempt or confidential. In the case of multiple
settlement agreements involving multiple parties involved in the same incident or
undertaking, a settlement agreement is exempt until settlement agreements have been
fully executed by all concerned parties unless the records are otherwise exempt or
confidential.
12. Unless subject to subsection 6 of section 44-04-18, active litigation records are exempt
from section 44-04-18. For purposes of this subsection, "active litigation records"
means records obtained, compiled, or prepared by a public entity or the attorney
representing a public entity for the purpose of litigation unless the records already
have been filed publicly or the litigation is completed.
Source: Open US Law by Vaquill AI (CC BY 4.0)URL: https://ndlegis.gov/cencode/t44c04.pdf#nameddest=44-04-19p1Fetched: 10/16/2026