Chapter 10-33 status is no defence

The point is made squarely in Opinion 2025-O-26, issued December 23, 2025, which notes of the entity in question that it “is also organized as a non-profit corporation organized under N.D.C.C. ch. 10-33” — the same chapter under which most North Dakota homeowners associations incorporate — and then holds it violated the open records statute by failing to respond to a request “within a reasonable time” and by “failing to give the requester an explanation for the nearly 80-day delay.”³

Being a nonprofit corporation does not answer the question. Being privately funded does.

Where a North Dakota association could find itself inside the test

Most will not be. An association funded entirely by owner assessments receives nothing from the state or a political subdivision and expends no public funds. It is outside.

But the test is transactional, and associations do touch public money in recognisable ways:

Grants. A community grant for a playground, a trail connection, a tree-planting programme or an energy retrofit is public funds received. Whether it makes the association a public entity turns on whether the association gave equivalent value under an identified agreement.

Disaster and mitigation money. Flood mitigation, buy-out programmes and storm recovery assistance routed through a county or a city are the likeliest North Dakota route.

A city paying the association to maintain something public. A contract to maintain a public trail, a stormwater facility or a boulevard is the situation the carve-out was written for — reasonably identified goods and services at equivalent fair market value, which keeps the association outside. An undocumented payment does not.

Special assessment and improvement district money. Where a district funds work inside a development, look carefully at who receives and who spends.

The scope limit is the useful part

Both 2025 opinions hold the entity is a public entity “to the extent that it is supported by or expends public funds.” In 2025-O-12 the Attorney General concluded the organisation “did not violate the open meetings laws by refusing public access to its May 31, 2022, and June 28, 2022, meetings because the meetings did not relate to public funds,” and in 2025-O-18 that the entity “did not violate N.D.C.C. § 44-04-18 by withholding records unrelated to the use of public funds.”

So an association that took a single grant does not thereby open its assessment ledger, its violation file or its executive session minutes. It opens the part touching the grant.

Two procedural rules worth knowing regardless

From 2025-O-18: “North Dakota law does not require record requests to be made in writing or signed. A public entity may not condition access on signing a form or submitting a written request.” An association inside the test that insists on its own request form is out of compliance by insisting.

And from 2025-O-26: an eighty-day delay without explanation is a violation in itself. Time and explanation are separate duties.

What this means for a board

If you take public money, document what the public got. A written agreement identifying the goods or services and showing equivalent fair market value is the carve-out. Without it the payment looks like support.

Segregate it. Grant funds in their own account with their own ledger make the “to the extent” limit easy to apply and hard to argue with.

Do not confuse this with owner access. An owner's right to see association records comes from the declaration, the bylaws, and — for an incorporated association — chapter 10-33, not from the open records law. Our North Dakota records inspection page covers that route, which is the one nearly every request will travel.

The controlling case, and what the sweep found

The Attorney General's own Open Records Manual points to Adams County Record v. Greater North Dakota Association, 529 N.W.2d 830 (N.D. 1995), which “addresses the application of the open records law to a private, nonprofit corporation which was alleged to have been supported by public funds.” The manual's sixty pages contain no mention of a homeowners association, a community association or a condominium.

Neither do the opinions. Of the 51 issued in 2025 and 2026 through September — six legal opinions and 45 open records and meetings opinions — none involves a homeowners association, condominium association, restrictive covenant, common-interest community or special assessment district. Seven are scanned images that could not be machine-read; all seven were issued to identified government bodies, none to an association.

What to watch next

Watch for the first North Dakota association to take grant or mitigation money at a scale that makes someone ask the question — flood mitigation along the Red River is the likeliest occasion. Watch, too, whether any future opinion addresses an association directly. In two years of opinions, none has.