TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 41, N.D. Sup. Ct. Admin. R., Access to Judicial Records
In April, the Committee took a preliminary look at the Court Technology Committee's proposed amendments to Admin. Rule 41. The Committee decided to take a second look at the proposal at the September meeting.
Judicial Work Product:
An issue raised in April was how to deal with judicial work product. In response to this concern, staff made a change to the proposal at lines 243-244, inserting language to make it clear that parties to a matter cannot have access to judicial work product in the matter.
The Committee's April discussion of judicial work product also touched on the issue of whether judicial records are subject to the Open Records statutes. The attached Attorney General's opinion addresses this issue and concludes that it is the Supreme Court, not the legislature, that has the authority to make rules governing public access to court records.
Records in Domestic Cases:
Another issue raised at the April meeting was whether the Supreme Court should restrict access to records in family law cases. The most prominent state to restrict access to such records is New York, which allows only parties and their attorneys access to matrimonial action records. A copy of New York Domestic Relations Law § 235, which contains the restriction, is attached.
In the practice notes to the New York statute, which are attached, the writer comments that the access restriction "has an ancient history, going back to 1847." The commentary continues:
The policy behind the rule is that matrimonial matters can involve painful, even embarrassing details, which the parties should have a right to keep private. Absent some overriding importance to the persons who would have access to the file, the privacy should be respected.
Language based on Domestic Relations Law § 235(1) has been added to the Admin. Rule 41 proposal for the Committee's consideration. The language appears at lines 176-178.
A difference between the proposed language and the New York statute is that the proposed language does not exclude access to final judgments and orders of the court. Under § 235(1) access to such documents is restricted. People seeking access to disposition information instead may obtain a separate document called a "certificate of disposition." This document is prepared by the clerk and discussed in § 235(3).
Allowing Remote Access Only to Court-Generated Records
Minnesota has placed restrictions on remote access to affidavits, briefs and similar party generated documents. Remote access means access from a computer outside the courthouse, presumably from home or office over the Internet. Like the proposed North Dakota rule, Minnesota Rule 8 envisions that there will be remote access to court records and it specifies types of records that must be available remotely if technology allows. However the Minnesota rule states that electronic records of types not specified in the list "shall not be made remotely accessible but shall be made accessible in either electronic or in paper form at the court facility." Minnesota Rule 8 is attached as is an article from the St. Cloud Times explaining the rationale behind Minnesota's limits on remote access.
Bob Pesall, in his comment on the Admin. Rule 41 proposal, seems to endorse a Minnesota-style approach to remote access. His comment is attached. In concluding his comment, he states that: "A better solution would be to create a system that permits some information, that with little or no potential for abuse, to be remotely available, while other information is open only to those who go to the trouble of visiting the courthouse or requesting copies of specific documents."
South Dakota's Deputy State Court Administrator, Lynn Sudbeck, did a study on placing court records online and also endorsed the Minnesota-style approach. The abstract of her study is attached. Sudbeck suggests that courts should make court-generated documents (such as orders, judgments and opinions) available online for remote access, but that access to documents generated by parties (or third parties) should be available only at a courthouse.
In its current form, proposed Admin. Rule 41 contains a list of information that must be made available for remote access at lines 90-101. This list is similar to the Minnesota list. Admin. Rule 41 does not contain additional restrictive language like the Minnesota rule but instead contains the somewhat cryptic language at lines 102-103: "Terminals or computers for the public's access to court information systems will be allowed to access information which would otherwise be available." The Committee may wish to discuss whether this language can be improved or whether language consistent with the Minnesota rule, Pesall's comment, or Sudbeck's conclusions should be substituted.
The Committee may also wish to consider whether imposing restrictions on remote access to personal information, over and above the general restrictions that are already part of Admin. Rule 41, would be appropriate. Paragraph 2(b) of the Minnesota rule, in addition to restricting remote access to social security numbers and financial account numbers, also bars remote access to addresses, phone numbers and identifying information. If the Committee considers making such a change, the Committee may wish to discuss who will be responsible for redacting this information from on-line documents and whether any other rules would need to be changed to implement such a provision.