On March 4, 2026, the North Dakota Attorney General issued an opinion regarding the authority of the State Auditor to access records held by Protection and Advocacy (P&A). The opinion concluded that federal law does not prevent the state from auditing P&A. It also clarified that, despite P&A holding confidential records, both N.D.C.C. § 54-10-22.1 and 42 C.F.R. § 51.45(c) permit the State Auditor and employees in the auditor’s office to review these records without causing harm to P&A.
The Attorney General also addressed whether Rule 1.6 of the North Dakota Rules of Professional Conduct for licensed attorneys prohibits P&A from sharing client file contents with the State Auditor during a non-financial performance audit under N.D.C.C. ch. 54-10, particularly when files include information about private individuals or businesses who contacted P&A.
A previous opinion from 1995 was referenced, which found that while P&A could contract with private attorneys to represent individuals and auditors could request billings from those attorneys, names of represented individuals were redacted due to attorney-client privilege rules. However, it was noted that “the names of individuals seeking services of P&A are protected under N.D.C.C. § 25-01.3.” The opinion stated:
“Thus, P&A’s records which indicate to whom its services were provided are available to the State Auditor for performance audit purposes. The State Auditor has been given access by P&A to its records other than the attorney’s billings. Therefore, the State Auditor already has access to the names of the persons to whom P&A provides services. State law requires that the State Auditor and his employees must keep such information confidential.”
The current opinion relies on these past interpretations, affirming that records made confidential by N.D.C.C. § 25-01.3-10 are accessible under N.D.C.C. § 54-10-22 for audit purposes by the State Auditor and their staff.
For further details, see opinion 2026-L-01.
