M E M O
TO:Joint Procedure Committee
RE:Rule 32, N.D.R.Crim.P.; Sentence and Judgment
Rule 32, N.D.R.Crim.P., needs to be be amended to clarify whether presentence investigation reports are open to the public for inspection. The Committee has considered the issue, but the issue has not yet been resolved.
Generally, under Administrative Rule 41, judicial system records are open to the public for inspection. However, the Appendix to AR 41 indicates Rule 32 addresses the confidentiality of presentence investigation reports. Likewise, as amended in the 1997 legislative session, Section 12-47-36, N.D.C.C., defines the confidentiality of presentence investigation reports by deferring to Rule 32. The problem and source of confusion is that Rule 32 does not address whether the public has a right to inspect the presentence investigation report.
Rule 32 used to provide for confidentiality by requiring the parties to return their copy of the presentence investigation report and by prohibiting additional copies from being made. On March 1, 1992, the provision requiring copies to be returned, and prohibiting copies from being made, was eliminated. The Committee meeting material from October 25-26, 1990 indicates the provision was eliminated for the following reasons: 1) The report may be needed in the preparation of an appeal; 2) the defendant can get copies of the report through the Freedom of Information Act; and 3) no public interest is served by requiring return of the report. However, even before the March 1, 1992, amendment, Rule 32 did not really address whether the public had a right to inspect the presentence investigation report.
Currently, Rule 32 only addresses inspection of the presentence investigation report by the defendant. The Rule provides the defendant is to be provided with a copy of the report unless the report contains harmful information. The Rule does not address whether the public has a right to inspect the presentence investigation report.
At the last meeting, the Committee considered a proposal to amend Rule 32 for the purpose of clarifying whether presentence investigation reports are open for public inspection. The proposal would have made the presentence investigation report open to the public and the parties. The proposal provided for confidential, sensitive, or potentially harmful information to be included in an addendum that would be confidential as to both the public and the parties.
Some Committee members were critical of the proposal treating the public and the parties equally. They thought the parties should have a greater right of inspection than the public. Others thought the proposal would overly restrict the publics right of access to information, because anything of substance would likely be placed in the confidential addendum. The proposal failed by a vote of 6 to 8, and the Committee was unable to agree on a solution. See Minutes, January 30, 1997.
Now, the Division of Parole and Probation has submitted a proposal for the Committee's consideration. The Division would like the confidentiality of presentence investigation reports defined in Rule 32. Previously, when submitting Section 12-47-36, N.D.C.C., to the 1997 Legislative Assembly, the Division did not define the confidentiality of presentence investigation reports in the statute out of deference to the fact this Committee was working on amending Rule 32 to address confidentiality of presentence investigation reports.
Under the proposal submitted by the Division of Parole and Probation, the presentence investigation report would be open to the public for inspection. Any addendum would not be open for inspection by the public. However, as in the current rule, the parties would be entitled to a copy of the addendum unless it contains potentially harmful information.