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, except as excluded under Section 5.
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) Court records are accessible to the public except as prohibited by this
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 or as governed by N.D. Sup. Ct. Admin. R. 40 with
51 respect to recordings of trial court proceedings.
52 (b) When Court Records May Be Accessed.
53 (1) Court records in a court facility must be available for public access
54 during normal business hours. Court records in electronic form to which the court
55 allows remote access will be available for access subject to technical systems
57 (2) Upon receiving a request for access to a court record, the clerk of court
58 must respond as promptly as practical. If a request cannot be granted promptly, or
59 at all, an explanation must be given to the requestor as soon as possible. The
60 requestor has a right to at least the following information: the nature of any
61 problem preventing access and the specific statute, federal law, or court or
62 administrative rule that is the basis of the denial. The explanation must be in
63 writing if desired by the requestor.
64 (3) The clerk of court is not required to search within a court record for
65 specific information that may be sought by a requestor.
66 (c) Access to Court Records Filed Before March 1, 2009. Court records
67 filed before the adoption of N.D.R.Ct. 3.4 may contain protected information listed
68 under N.D.R.Ct. 3.4(a). This rule does not require the review and redaction of
69 protected information from a court record that was filed before the adoption of
70 N.D.R.Ct. 3.4 on March 1, 2009.
71 (d) Fees for Access. The court may charge a fee for access to court records
72 in electronic form, for remote access, for bulk distribution or for compiled
73 information. To the extent that public access to information is provided exclusively
74 through a vendor, the court will ensure that any fee imposed by the vendor for the
75 cost of providing access is reasonable.
76 Section 4. Methods of Access to Court Records.
77 (a) Access to Court Records at Court Facility.
78 (1) Public Access Terminal. A terminal will be available at each county
79 courthouse for public access to court records stored statewide in the Odyssey
1 2) Request for Access to Other Records.
Any person desiring to inspect,
examine, or copy public access to a court record
that is not available on the public
83 access terminal must make an oral or written request to the clerk of court. If the
84 request is oral, the clerk may require a written request if the clerk determines that
85 the disclosure of the record is questionable or the request is so involved or lengthy
86 as to need further definition. The request must clearly identify the record requested
87 so that the clerk can locate the record without doing extensive research.
88 Continuing requests for a document not yet in existence may not be considered.
2 A) Response to Request. The clerk of court is not
required to allow
90 access to more than ten files per day per requestor but may do so in the exercise of
91 the clerk's discretion if the access will not disrupt the clerk's primary function. If
92 the request for access and inspection is granted, the clerk may set reasonable time
93 and manner of inspection requirements that ensure timely access while protecting
94 the integrity of the records and preserving the affected office from undue
95 disruption. The inspection area must be within full view of court personnel
96 whenever possible. The person inspecting the records may not leave the court
97 facility until the records are returned and examined for completeness.
3 B) Response by Court. If a clerk of court determines
there is a question
99 about whether a record may be disclosed, or if a written request is made under
100 Section 6(b) for a ruling by the court after the clerk denies or grants an access
101 request, the clerk must refer the request to the court for determination. The court
102 must use the standards listed in Section 6 to determine whether to grant or deny the
103 access request.
104 (b) Remote Access to Court Records.
105 (1) In General. The following information in court records must be made
106 remotely accessible to the public if it exists in electronic form, unless public access
107 is restricted under this rule:
1 A) litigant/party indexes to cases filed with the
2 B) listings of new case filings, including the names
of the parties;
3 C) register of actions showing what documents have
been filed in a case;
4 D) calendars or dockets of court proceedings,
including the case number
112 and caption, date and time of hearing, and location of hearing; and
5 E) reports specifically developed for electronic
transfer approved by the
114 state court administrator and reports generated in the normal course of business, if
115 the report does not contain information that is excluded from public access under
116 Section 5 or 6.
117 (2) Access Regulation.
118 (A) The Supreme Court may adopt and implement policies to regulate
119 remote access to court records. These policies must be posted publicly on the
120 Court's website.
121 (B) Attorneys licensed in North Dakota may apply to obtain remote access
122 to court records stored in the Odyssey system.
123 (C) A record of a closed criminal case for which there is no conviction may
124 not be remotely accessed through a name search except by an attorney granted
125 remote access to the Odyssey system.
126 (c) Requests for Bulk Distribution of Court Records.
127 (1) Bulk distribution of information in the court record is permitted for
128 court records that are publicly accessible under Section 3(a).
129 (2) A request for bulk distribution of information not publicly accessible
130 can be made to the court for scholarly, journalistic, political, governmental,
131 research, evaluation or statistical purposes when the identification of specific
132 individuals is ancillary to the purpose of the inquiry. Prior to the release of
133 information under this subsection the requestor must comply with the provisions of
134 Section 6.
135 (3) A court may allow a party to a bulk distribution agreement access to
136 birth date, street address, and social security number information if the party
137 certifies that it will use the data for legitimate purposes as permitted by law.
138 (d) Access to Compiled Information From Court Records.
139 (1) Any member of the public may request compiled information that
140 consists solely of information that is publicly accessible and that is not already in
141 an existing report. The court may compile and provide the information if it
142 determines, in its discretion, that providing the information meets criteria
143 established by the court, that the resources are available to compile the information
144 and that it is an appropriate use of public resources. The court may delegate to its
145 staff or the clerk of court the authority to make the initial determination to provide
146 compiled information.
147 (2) Requesting compiled restricted information.
148 (A) Compiled information that includes information to which public access
149 has been restricted may be requested by any member of the public only for
150 scholarly, journalistic, political, governmental, research, evaluation, or statistical
152 (B) The request must:
153 (i) identify what information is sought,
154 (ii) describe the purpose for requesting the information and explain how the
155 information will benefit the public interest or public education, and
156 (iii) explain provisions for the secure protection of any information
157 requested to which public access is restricted or prohibited.
158 (C) The court may grant the request and compile the information if it
159 determines that doing so meets criteria established by the court and is consistent
160 with the purposes of this rule, the resources are available to compile the
161 information, and that it is an appropriate use of public resources.
162 (D) If the request is granted, the court may require the requestor to sign a
163 declaration that:
164 (i) the data will not be sold or otherwise distributed, directly or indirectly, to
165 third parties, except for journalistic purposes,
166 (ii) the information will not be used directly or indirectly to sell a product or
167 service to an individual or the general public, except for journalistic purposes, and
168 (iii) there will be no copying or duplication of information or data provided
169 other than for the stated scholarly, journalistic, political, governmental, research,
170 evaluation, or statistical purpose.
171 The court may make such additional orders as may be needed to protect
172 information to which access has been restricted or prohibited.
173 Section 5. Court Records Excluded From Public Access.
174 The following information in a court record is not accessible to the public:
175 (a) information that is not accessible to the public under federal law;
176 (b) information that is not accessible to the public under state law, court
177 rule, case law or court order, including:
178 (1) affidavits or sworn testimony and records of proceedings in support of
179 the issuance of a search or arrest warrant pending the return of the warrant;
180 (2) information in a complaint and associated arrest or search warrant to the
181 extent confidentiality is ordered by the court under N.D.C.C. §§ 29-05-32 or
183 (3) documents filed with the court for in-camera examination pending
185 (4) case information and documents in Child Relinquishment to Identified
186 Adoptive Parent cases brought under N.D.C.C. ch. 14-15.1;
187 (5) domestic violence protection order files and disorderly conduct
188 restraining order files when the restraining order is sought due to domestic
189 violence, except for orders of the court;
190 (6) documents in domestic violence protection order and disorderly conduct
191 restraining order cases in which the initial petition was dismissed summarily by the
192 court without a contested hearing;
193 (7) names of qualified or summoned jurors and contents of jury
194 qualification forms if disclosure is prohibited or restricted by order of the court;
195 (8) records of voir dire of jurors, unless disclosure is permitted by court
196 order or rule;
197 (9) records of deferred impositions of sentences or pretrial diversions
198 resulting in dismissal;
199 (10) records of a case in which the magistrate finds no probable cause for
200 the issuance of a complaint;
(10) (11) unless exempted from redaction by
N.D.R.Ct. 3.4(c), protected
203 (A) except for the last four digits, social security numbers, taxpayer
204 identification numbers, and financial account numbers,
205 (B) except for the year, birth dates, and
206 (C) except for the initials, the name of an individual known to be a minor,
207 unless the minor is a party, and there is no statute, regulation, or rule mandating
(11) (12) judge and court personnel work material,
210 calendars, communications from law clerks, bench memoranda, notes, work in
211 progress, draft documents and non-finalized documents;
(12) (13) party, witness and crime victim contact
information gathered and
213 recorded by the court for administrative purposes, including telephone numbers
214 and e-mail, street and postal addresses
215 (14) the name of a patron of the North Dakota Legal Self Help Center or
216 information sufficient to identify a patron or the subject about which a patron
217 requested information.
218 (c) This rule does not preclude access to court records by the following
219 persons in the following situations:
220 (1) federal, state, and local officials, or their agents, examining a court
221 record in the exercise of their official duties and
222 (2) parties to an action and their attorneys examining the court file of the
223 action, unless restricted by order of the court, but parties and attorneys may not
224 access judge and court personnel work material in the court file.
225 (d) A member of the public may request the court to allow access to
226 information excluded under Section 5 as provided in Section 6.
227 Section 6. Requests to Prohibit Public Access to Information in Court
228 Records or to Obtain Access to Restricted Information.
229 (a) Request to Prohibit Access.
230 (1) A request to the court to prohibit public access to information in a court
231 record may be made by any party to a case, by the individual about whom
232 information is present in the court record, or on the court's own motion on notice
233 as provided in Section 6(c).
234 (2) The court must decide whether there are sufficient grounds to overcome
235 the presumption of openness of court records and prohibit access according to
236 applicable constitutional, statutory and case law.
237 (3) In deciding whether to prohibit access the court must consider that the
238 presumption of openness may only be overcome by an overriding interest. The
239 court must articulate this interest along with specific findings sufficient to allow a
240 reviewing court to determine whether the closure order was properly entered.
241 (4) The closure of the records must be no broader than necessary to protect
242 the articulated interest. The court must consider reasonable alternatives to closure,
243 such as redaction or partial closure, and the court must make findings adequate to
244 support the closure. The court may not deny access only on the ground that the
245 record contains confidential or closed information.
246 (5) In restricting access the court must use the least restrictive means that
247 will achieve the purposes of this rule and the needs of the requestor.
248 (6) If the court concludes, after conducting the balancing analysis and
249 making findings as required by paragraphs (1) through (5), that the interest of
250 justice will be served, it may prohibit public Internet access to an individual
251 defendant's electronic court record in a criminal case:
252 (A) if the charges against the defendant are dismissed; or
253 (B) if the defendant is acquitted.
254 If the court grants a request to prohibit public Internet access to an
255 electronic court record in a criminal case, the search result for the record must
256 display the words "Internet Access Prohibited under N.D.Sup.Ct. Admin.R 41."
257 (b) Request to Obtain Access.
258 (1) A request to obtain access to information in a court record to which
259 access is prohibited under Section 4(a), 5 or 6(a) may be made to the court by any
260 member of the public or on the court's own motion on notice as provided in
261 Section 6(c).
262 (2) In deciding whether to allow access, the court must consider whether
263 there are sufficient grounds to overcome the presumption of openness of court
264 records and continue to prohibit access under applicable constitutional, statutory
265 and case law. In deciding this the court must consider the standards outlined in
266 Section 6(a).
267 (c) Form of Request.
268 (1) The request must be made by a written motion to the court.
269 (2) The requestor
shall must give notice to all parties
in the case.
270 (3) The court may require notice to be given by the requestor or another
271 party to any individuals or entities identified in the information that is the subject
272 of the request. When the request is for access to information to which access was
273 previously prohibited under Section 6(a), the court must provide notice to the
274 individual or entity that requested that access be prohibited.
275 Section 7. Obligations Of Vendors Providing Information Technology
276 Support To A Court To Maintain Court Records.
277 (a) If the court contracts with a vendor to provide information technology
278 support to gather, store, or make accessible court records, the contract will require
279 the vendor to comply with the intent and provisions of this rule. For purposes of
280 this section, "vendor" includes a state, county or local governmental agency that
281 provides information technology services to a court.
282 (b) By contract the vendor will be required to notify the court of any
283 requests for compiled information or bulk distribution of information, including
284 the vendor's requests for such information for its own use.
285 EXPLANATORY NOTE
286 Adopted on an emergency basis effective October 1, 1996; Amended and
287 adopted effective November 12, 1997; March 1, 2001; July 1, 2006; March 1,
288 2009; March 15, 2009; March 1, 2010; March 1, 2012; March 1, 2015; March 1,
289 2016; October 1, 2016; ____________. Appendix amended effective August 1,
290 2001, to reflect the name change of State Bar Board to State Board of Law
292 Section 2(c) was amended, effective_________, to clarify that the public
293 may have access to information in a court record except when access is excluded
294 under Section 5.
295 Section 3(a)(1) was amended, effective October 1, 2016, to reference N.D.
296 Sup. Ct. Admin. R. 40, which governs access to recordings of trial court
298 Section 3(b)(3) was added, effective March 1, 2016, to clarify that the clerk
299 of court is not required to search within a court record for specific information that
300 may be sought by a requestor.
301 Section 3(c) was adopted, effective March 1, 2010, to state that protected
302 information may be contained in court records filed before the adoption of
303 N.D.R.Ct. 3.4.
304 Section 4(a) was amended, effective____________________, to specify
305 that a terminal will be available at each county courthouse for public access to
306 court records stored in the Odyssey system.
307 Section 4(b) was amended, effective_______________, to allow the
308 Supreme Court to enact and implement policies to regulate remote access to court
309 records and to limit remote access by name search to pre-conviction records in
310 criminal cases. An additional amendment would allow attorneys to apply for
311 remote access to public court records stored in the Odyssey system.
312 Section 4(c) was amended, effective March 15, 2009, to allow parties who
313 enter into bulk distribution agreements with the courts to have access to birth date,
314 street address, and social security number information upon certifying compliance
315 with laws governing the security of protected information. Such laws include the
316 Federal Fair Credit Reporting Act, the Gramm Leach Bliley Act, the USA Patriot
317 Act and the Driver's Privacy Protection Act.
318 Section 5(b)(6) was amended, effective March 1, 2015, to clarify that the
319 restriction on public access to documents in domestic violence protection order
320 and disorderly conduct restraining order cases under this paragraph is limited to
321 cases that were dismissed summarily.
322 Section 5(b)(8) was amended, effective March 15, 2009, to list types of
323 protected information open to the public. The term "financial-account number" in
324 Section 5(b)(8) includes any credit, debit or electronic fund transfer card number,
325 and any other financial account number.
326 Section 5(b)(8) was amended, effective March 1, 2010, to incorporate the
327 exemptions from redaction contained in N.D.R.Ct. 3.4(b). A document containing
328 protected information that is exempt from redaction under N.D.R.Ct. 3.4(b) is
329 accessible to the public.
330 Section 5(b)(9) was amended, effective_________, to exclude pretrial
331 diversion cases resulting in dismissal from public access.
332 Section 5(b)(10) was added, effective_________, to exclude cases in which
333 a magistrate finds no probable cause for the issuance of a complaint from public
335 Section 5(b)(12) was added, effective March 1, 2016, to exclude party,
336 witness and crime victim contact information gathered and recorded by the court
337 for administrative purposes from public access.
338 Section 5(b)(13) was added, effective_________, to exclude information
339 about patrons of the North Dakota Legal Self Help Center from public access.
340 Section 6(a)(6) was added, effective March 1, 2012, to provide a method for
341 the court to prohibit public Internet access to an electronic case record when
342 charges against a defendant are dismissed or the defendant is acquitted. A request
343 under Section 6(a)(1) is required before the court can act to prohibit access under
344 Section 6(a)(6).
345 Nothing in this rule or N.D.R.Ct. 3.4 precludes a clerk of court or the
346 electronic case management system from identifying non-confidential records that
347 match a name and date of birth or a name and social security number.
348 Joint Procedure Committee Minutes of ________________; May 12-13,
349 2016, pages 22-25; January 28-29, 2016, pages 2-7; September 24-25, 2015, pages
350 15-16, 20-21; April 23-24, 2015, pages 8-10; April 24-25, 2014, page 27; April
351 28-29, 2011, pages 9-12; September 23-24, 2010, pages 16-20; September 24-25,
352 2009, pages 8-9; May 21-22, 2009, pages 28-44; January 29-20, 2009, pages 3-4;
353 September 25, 2008, pages 2-6; January 24, 2008, pages 9-12; October 11-12,
354 2007, pages 28-30; April 26-27, 2007, page 31; September 22-23, 2005, pages
355 6-16; April 28-29, 2005, pages 22-25; April 29-30, 2004, pages 6-13, January
356 29-30, 2004, pages 3-8; September 16-17, 2003, pages 2-11; April 24-25, 2003,
357 pages 6-12. Court Technology Committee Minutes of June 18, 2004; March 19,
358 2004; September 12, 2003; Conference of Chief Justices/Conference of State
359 Court Administrators: Guidelines for Public Access to Court Records.
360 Cross Reference: N.D.R.Ct. 3.4 (Privacy Protection for Filings Made With
361 the Court).