N.D. Sup. Ct. Admin. R.
RULE 41. ACCESS TO COURT RECORDS
1 Section 1. Purpose.
2 The purpose of this rule is to provide a comprehensive framework for
3 public access to court records. Every member of the public will have access to
4 court records as provided in this rule.
5 Section 2. Definitions.
6 (a) "Court record," regardless of the form, includes:
7 (1) any document, information, or other thing that is collected, received, or
8 maintained by court personnel in connection with a judicial proceeding;
9 (2) any index, calendar, docket, register of actions, official record of the
10 proceedings, order, decree, judgment, minute, and any information in a case
11 management system created by or prepared by court personnel that is related to a
12 judicial proceeding; and
13 (3) information maintained by court personnel pertaining to the
14 administration of the court or clerk of court office and not associated with any
15 particular case.
16 (b) "Court record" does not include:
17 (1) other records maintained by the public official who also serves as clerk
18 of court;
19 (2) information gathered, maintained or stored by a governmental agency or
20 other entity to which the court has access but which is not part of the court record
21 as defined in this rule; and
22 (3) a record that has been disposed of under court records management
24 (c) "Public access" means that the public may inspect and obtain a copy of
25 the information in a court record.
26 (d) "Remote access" means the ability to electronically search, inspect, or
27 copy information in a court record without the need to physically visit the court
28 facility where the court record is maintained.
29 (e) "Bulk distribution" means the distribution of all, or a significant subset,
30 of the information in court records, as is and without modification or compilation.
31 (f) "Compiled information" means information that is derived from the
32 selection, aggregation or reformulation by the court of some of the information
33 from more than one individual court record.
34 (g) "Electronic form" means information in a court record that exists as:
35 (1) electronic representations of text or graphic documents;
36 (2) an electronic image, including a video image, of a document, exhibit or
37 other thing;
38 (3) data in the fields or files of an electronic database; or
39 (4) an audio or video recording, analog or digital, of an event or notes in an
40 electronic file from which a transcript of an event can be prepared.
41 Section 3. General Access Rule.
42 (a) Public Access to Court Records.
43 (1) Information in the court record is accessible to the public except as
44 prohibited by this rule.
45 (2) There must be a publicly accessible indication of the existence of
46 information in a court record to which access has been prohibited, which
47 indication may not disclose the nature of the information protected.
48 (3) A court may not adopt a more restrictive access policy or otherwise
49 restrict access beyond that provided for in this rule, nor provide greater access than
50 that provided for in this rule.
51 (b) When Court Records May Be Accessed.
52 (1) Court records in a court facility must be available for public access
53 during normal business hours. Court records in electronic form to which the court
54 allows remote access will be available for access subject to technical systems
56 (2) Upon receiving a request for access to information, the clerk of court
57 must respond as promptly as practical. If a request cannot be granted promptly, or
58 at all, an explanation must be given to the requestor as soon as possible. The
59 requestor has a right to at least the following information: the nature of any
60 problem preventing access and the specific statute, federal law, or court or
61 administrative rule that is the basis of the denial. The explanation must be in
62 writing if desired by the requestor.
63 (c) Access to Court Records Filed Before March 1, 2009. Court records
64 filed before the adoption of N.D.R.Ct. 3.4 may contain protected information listed
65 under N.D.R.Ct. 3.4(a). This rule does not require the review and redaction of
66 protected information from a court record that was filed before the adoption of
67 N.D.R.Ct. 3.4 on March 1, 2009.
68 (d) Fees for Access.
69 The court may charge a fee for access to court records in electronic form, for
70 remote access, for bulk distribution or for compiled information. To the extent that
71 public access to information is provided exclusively through a vendor, the court
72 will ensure that any fee imposed by the vendor for the cost of providing access is
74 Section 4. Methods of Access to Court Records.
75 (a) Access to Court Records at Court Facility.
76 (1) Request for Access. Any person desiring to inspect, examine, or copy a
77 court record must make an oral or written request to the clerk of court. If the
78 request is oral, the clerk may require a written request if the clerk determines that
79 the disclosure of the record is questionable or the request is so involved or lengthy
80 as to need further definition. The request must clearly identify the record requested
81 so that the clerk can locate the record without doing extensive research.
82 Continuing requests for a document not yet in existence may not be considered.
83 (2) Response to Request. The clerk of court is not required to allow access
84 to more than ten files per day per requestor but may do so in the exercise of the
85 clerk's discretion if the access will not disrupt the clerk's primary function. If the
86 request for access and inspection is granted, the clerk may set reasonable time and
87 manner of inspection requirements that ensure timely access while protecting the
88 integrity of the records and preserving the affected office from undue disruption.
89 The inspection area must be within full view of court personnel whenever possible.
90 The person inspecting the records may not leave the court facility until the records
91 are returned and examined for completeness.
92 (3) Response by Court. If a clerk of court determines there is a question
93 about whether a record may be disclosed, or if a written request is made under
94 Section 6(b) for a ruling by the court after the clerk denies or grants an access
95 request, the clerk must refer the request to the court for determination. The court
96 must use the standards listed in Section 6 to determine whether to grant or deny the
97 access request.
98 (b) Remote Access to Court Records. The following information in court
99 records must be made remotely accessible to the public if it exists in electronic
100 form, unless public access is restricted under this rule:
101 (1) litigant/party indexes to cases filed with the court;
102 (2) listings of new case filings, including the names of the parties;
103 (3) register of actions showing what documents have been filed in a case;
104 (4) calendars or dockets of court proceedings, including the case number
105 and caption, date and time of hearing, and location of hearing; and
106 (5) reports specifically developed for electronic transfer approved by the
107 state court administrator and reports generated in the normal course of business, if
108 the report does not contain information that is excluded from public access under
109 Section 5 or 6.
110 (c) Requests for Bulk Distribution of Court Records.
111 (1) Bulk distribution of information in the court record is permitted for
112 court records that are publicly accessible under Section 3(a).
113 (2) A request for bulk distribution of information not publicly accessible
114 can be made to the court for scholarly, journalistic, political, governmental,
115 research, evaluation or statistical purposes when the identification of specific
116 individuals is ancillary to the purpose of the inquiry. Prior to the release of
117 information under this subsection the requestor must comply with the provisions of
118 Section 6.
119 (3) A court may allow a party to a bulk distribution agreement access to
120 birth date, street address, and social security number information if the party
121 certifies that it will use the data for legitimate purposes as permitted by law.
122 (d) Access to Compiled Information From Court Records.
123 (1) Any member of the public may request compiled information that
124 consists solely of information that is publicly accessible and that is not already in
125 an existing report. The court may compile and provide the information if it
126 determines, in its discretion, that providing the information meets criteria
127 established by the court, that the resources are available to compile the information
128 and that it is an appropriate use of public resources. The court may delegate to its
129 staff or the clerk of court the authority to make the initial determination to provide
130 compiled information.
131 (2) Requesting compiled restricted information.
132 (A) Compiled information that includes information to which public access
133 has been restricted may be requested by any member of the public only for
134 scholarly, journalistic, political, governmental, research, evaluation, or statistical
136 (B) The request must:
137 (i) identify what information is sought,
138 (ii) describe the purpose for requesting the information and explain how the
139 information will benefit the public interest or public education, and
140 (iii) explain provisions for the secure protection of any information
141 requested to which public access is restricted or prohibited.
142 (C) The court may grant the request and compile the information if it
143 determines that doing so meets criteria established by the court and is consistent
144 with the purposes of this rule, the resources are available to compile the
145 information, and that it is an appropriate use of public resources.
146 (D) If the request is granted, the court may require the requestor to sign a
147 declaration that:
148 (i) the data will not be sold or otherwise distributed, directly or indirectly, to
149 third parties, except for journalistic purposes,
150 (ii) the information will not be used directly or indirectly to sell a product or
151 service to an individual or the general public, except for journalistic purposes, and
152 (iii) there will be no copying or duplication of information or data provided
153 other than for the stated scholarly, journalistic, political, governmental, research,
154 evaluation, or statistical purpose.
155 The court may make such additional orders as may be needed to protect
156 information to which access has been restricted or prohibited.
157 Section 5. Court Records Excluded From Public Access.
158 The following information in a court record is not accessible to the public:
159 (a) information that is not accessible to the public under federal law;
160 (b) information that is not accessible to the public under state law, court
161 rule, case law or court order, including:
162 (1) affidavits or sworn testimony and records of proceedings in support of
163 the issuance of a search or arrest warrant pending the return of the warrant;
164 (2) information in a complaint and associated arrest or search warrant to the
165 extent confidentiality is ordered by the court under N.D.C.C. §§ 29-05-32 or 29-
167 (3) documents filed with the court for in-camera examination pending
169 (4) case information and documents in Child Relinquishment to Identified
170 Adoptive Parent cases brought under N.D.C.C. ch. 14-15.1;
171 (5) domestic violence protection order files and disorderly conduct
172 restraining order files when the restraining order is sought due to domestic
173 violence, except for orders of the court;
174 (6) domestic violence protection order and disorderly conduct restraining
175 order cases in which the initial petition was dismissed summarily by the court
further a contested hearing;
177 (7) names of qualified or summoned jurors and contents of jury
178 qualification forms if disclosure is prohibited or restricted by order of the court;
179 (8) records of voir dire of jurors, unless disclosure is permitted by court
180 order or rule;
181 (9) records of deferred impositions of sentences resulting in dismissal;
182 (10) unless exempted from redaction by N.D.R.Ct. 3.4(c), protected
184 (A) except for the last four digits, social security numbers, taxpayer
185 identification numbers, and financial account numbers,
186 (B) except for the year, birth dates, and
187 (C) except for the initials, the name of an individual known to be a minor,
188 unless the minor is a party, and there is no statute, regulation, or rule mandating
190 (11) judge and court personnel work material, including personal calendars,
191 communications from law clerks, bench memoranda, notes, work in progress, draft
192 documents and non-finalized documents.
193 (c) This rule does not preclude access to court records by the following
194 persons in the following situations:
195 (1) federal, state, and local officials, or their agents, examining a court
196 record in the exercise of their official duties and powers.
197 (2) parties to an action and their attorneys examining the court file of the
198 action, unless restricted by order of the court, but parties and attorneys may not
199 access judge and court personnel work material in the court file.
200 (d) A member of the public may request the court to allow access to
201 information excluded under Section 5 as provided in Section 6.
202 Section 6. Requests to Prohibit Public Access to Information in Court
203 Records or to Obtain Access to Restricted Information.
204 (a) Request to Prohibit Access.
205 (1) A request to the court to prohibit public access to information in a court
206 record may be made by any party to a case, by the individual about whom
207 information is present in the court record, or on the court's own motion on notice
208 as provided in Section 6©.
209 (2) The court must decide whether there are sufficient grounds to overcome
210 the presumption of openness of court records and prohibit access according to
211 applicable constitutional, statutory and case law.
212 (3) In deciding whether to prohibit access the court must consider that the
213 presumption of openness may only be overcome by an overriding interest. The
214 court must articulate this interest along with specific findings sufficient to allow a
215 reviewing court to determine whether the closure order was properly entered.
216 (4) The closure of the records must be no broader than necessary to protect
217 the articulated interest. The court must consider reasonable alternatives to closure,
218 such as redaction or partial closure, and the court must make findings adequate to
219 support the closure. The court may not deny access only on the ground that the
220 record contains confidential or closed information.
221 (5) In restricting access the court must use the least restrictive means that
222 will achieve the purposes of this rule and the needs of the requestor.
223 (6) If the court concludes, after conducting the balancing analysis and
224 making findings as required by paragraphs (1) through (5), that the interest of
225 justice will be served, it may prohibit public Internet access to an individual
226 defendant's electronic court record in a criminal case:
227 (A) if the charges against the defendant are dismissed; or
228 (B) if the defendant is acquitted. If the court grants a request to prohibit
229 public Internet access to an electronic court record in a criminal case, the search
230 result for the record must display the words "Internet Access Prohibited under
231 N.D.Sup.Ct. Admin.R 41."
232 (b) Request to Obtain Access.
233 (1) A request to obtain access to information in a court record to which
234 access is prohibited under Section 4(a), 5 or 6(a) may be made to the court by any
235 member of the public or on the court's own motion on notice as provided in
236 Section 6©.
237 (2) In deciding whether to allow access, the court must consider whether
238 there are sufficient grounds to overcome the presumption of openness of court
239 records and continue to prohibit access under applicable constitutional, statutory
240 and case law. In deciding this the court must consider the standards outlined in
241 Section 6(a).
242 (c) Form of Request.
243 (1) The request must be made by a written motion to the court.
244 (2) The requestor shall give notice to all parties in the case.
245 (3) The court may require notice to be given by the requestor or another
246 party to any individuals or entities identified in the information that is the subject
247 of the request. When the request is for access to information to which access was
248 previously prohibited under Section 6(a), the court must provide notice to the
249 individual or entity that requested that access be prohibited.
250 Section 7. Obligations Of Vendors Providing Information Technology
251 Support To A Court To Maintain Court Records.
252 (a) If the court contracts with a vendor to provide information technology
253 support to gather, store, or make accessible court records, the contract will require
254 the vendor to comply with the intent and provisions of this rule. For purposes of
255 this section, "vendor" includes a state, county or local governmental agency that
256 provides information technology services to a court.
257 (b) By contract the vendor will be required to notify the court of any
258 requests for compiled information or bulk distribution of information, including
259 the vendor's requests for such information for its own use.
260 EXPLANATORY NOTE
261 Adopted on an emergency basis effective October 1, 1996; Amended and
262 adopted effective November 12, 1997; March 1, 2001; July 1, 2006; March 1,
263 2009; March 15, 2009; March 1, 2010; March 1, 2012; _______________.
264 Appendix amended effective August 1, 2001, to reflect the name change of State
265 Bar Board to State Board of Law Examiners.
266 Section 3(c) was adopted, effective March 1, 2010, to state that protected
267 information may be contained in court records filed before the adoption of
268 N.D.R.Ct. 3.4.
269 Section 4(c) was amended, effective March 15, 2009, to allow parties who
270 enter into bulk distribution agreements with the courts to have access to birth date,
271 street address, and social security number information upon certifying compliance
272 with laws governing the security of protected information. Such laws include the
273 Federal Fair Credit Reporting Act, the Gramm Leach Bliley Act, the USA Patriot
274 Act and the Driver's Privacy Protection Act.
275 Section 5(b)(6) was amended, effective_______________, to clarify that
276 the restriction on public access to domestic violence protection order and
277 disorderly conduct restraining order cases under this paragraph is limited to cases
278 that were decided summarily.
279 Section 5(b)(8) was amended, effective March 15, 2009, to list types of
280 protected information open to the public. The term "financial-account number" in
281 Section 5(b)(8) includes any credit, debit or electronic fund transfer card number,
282 and any other financial account number.
283 Section 5(b)(8) was amended, effective March 1, 2010, to incorporate the
284 exemptions from redaction contained in N.D.R.Ct. 3.4(b). A document containing
285 protected information that is exempt from redaction under N.D.R.Ct. 3.4(b) is
286 accessible to the public.
287 Section 6(a)(6) was added, effective March 1, 2012, to provide a method for
288 the court to prohibit public Internet access to an electronic case record when
289 charges against a defendant are dismissed or the defendant is acquitted. A request
290 under Section 6(a)(1) is required before the court can act to prohibit access under
291 Section 6(a)(6).
292 Nothing in this rule or N.D.R.Ct. 3.4 precludes a clerk of court or the
293 electronic case management system from identifying non-confidential records that
294 match a name and date of birth or a name and social security number.
295 Joint Procedure Committee Minutes of _____________________; April 28-
296 9, 2011, pages 9-12; September 23-24, 2010, pages 16-20; September 24-25, 2009,
297 pages 8-9; May 21-22, 2009, pages 28-44; January 29-20, 2009, pages 3-4;
298 September 25, 2008, pages 2-6; January 24, 2008, pages 9-12; October 11-12,
299 2007, pages 28-30; April 26-27, 2007, page 31; September 22-23, 2005, pages 6-
300 6; April 28-29, 2005, pages 22-25; April 29-30, 2004, pages 6-13, January 29-30,
301 2004, pages 3-8; September 16-17, 2003, pages 2-11; April 24-25, 2003, pages 6-
302 2. Court Technology Committee Minutes of June 18, 2004; March 19, 2004;
303 September 12, 2003; Conference of Chief Justices/Conference of State Court
304 Administrators: Guidelines for Public Access to Court Records.
305 Cross Reference: N.D.R.Ct. 3.4 (Privacy Protection for Filings Made With
306 the Court).