TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 41, N.D. Sup. Ct. Admin. R., Access to Judicial Records; Rule 3.1, N.D.R.Ct., Pleadings; Appendix G, N.D.R.Ct.
The Committee has been considering rule amendments to protect personal information in court files since its April 2003 meeting. At its January 2004 meeting, the Committee identified several problems with the proposed rule amendments. The Committee decided to continue discussion of the proposed amendments at this meeting.
The main problems Committee members raised were that:
-- the proposed amendments do not provide adequate direction to attorneys and parties preparing filings;
-- the proposed amendments would create a multiplicity of new documents in case files, which would create problems for anyone dealing with the files;
-- the proposed amendments do not adequately address the problems faced by parties who are required (by statute, policy or custom) to include personal information in filings, particularly domestic relations attorneys.
The Committee asked staff to conduct research into alternative approaches for protecting personal information. Staff located a Federal District Court Rule which contains a protective mechanism that seems superior to the Minnesota model that the Committee has been following. Staff has prepared an alternative version of N.D.R.Ct. 3.1 which incorporates elements of the Federal model while also addressing the concerns expressed by the Committee. A copy of the Federal District Court Rule is attached.
Paragraph (i)(1) of the alternative version retains the definition of "personal information" developed by the Committee.
Paragraph (i)(2) instructs parties to refrain from including personal information in court filings. The paragraph also contains instructions on partial redaction of personal information when it is "necessary" to include it in a filing or attachment. As the Committee has discussed, inclusion might be "necessary" when the information is part of an exhibit like a tax form or when it is somehow relevant to the matter.
Paragraph (i)(3) allows the filing of documents containing non-redacted personal information when it is "required." As the Committee has discussed, inclusion of personal information in a document might be "required" when a policy or statute mandates it, as in the case of QDROs or child support orders.
Paragraph (i)(3) also sets out a procedure that requires documents containing non-redacted personal information to be marked confidential by the party and then to be retained by the court in a restricted part of the file. Under the proposed rule, the court may require the party to file a redacted copy for public access.
Paragraph (i)(4) makes it the responsibility of the party and/or its attorneys to do the redaction and marking work before submitting a filing.
Under the alternative version of Rule 3.1, the requirement to file a separate confidential information statement is eliminated as unnecessary. Instead, in ordinary matters (those in which there is no requirement that personal information be included in the pleadings) the alternative rule would direct parties to omit or redact personal information from court filings. If the parties were required to file personal information on a pleading, they would be allowed do so and access to the non-redacted pleading would be restricted (just as access to the confidential information form would have been restricted under the previous proposal).
Staff queried Court Administrator Ted Gladden about the alternative proposal and he indicated that he preferred it (see attached memo) particularly because it places responsibility on attorneys to identify documents containing personal information. He said it would be no problem for clerks to secure documents containing confidential personal information in a separate part of the file if such documents are identified by attorneys.
The alternative version of Rule 3.1 follows this memorandum. Also attached are the previous versions of Rule 41, Rule 3.1 and Appendix F as amended by the Committee over the course of its work on this issue. An additional proposed amendment has been to Rule 41 to include a reference to N.D.C.C. 25-03.3-03, regarding confidentiality of records on commitment of sexually dangerous offenders, in Rule 41's appendix.