M E M O
TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Administrative Rule 41, Access to Judicial Records
Judge Leclerc has suggested that the Committee take a look at ways to limit access to social security numbers and other personal information contained in public judicial records.
The Court Technology Committee recently discussed this issue as part of broader discussion on dealing with increasing requests from outside entities for copies of court records. Information on the extensive data requests the district court clerks are receiving is included as part of the meeting materials.
State law requires social security numbers to be included on many court records. Under the North Dakota Century Code, social security numbers, if available, must be included on marriage license applications (14-03-17); divorce decrees (14-05-02.1); child support payment orders (14-09-08.1); petitions to establish/modify child support (14-12.2-23); out-of-state support order registrations (14-12.2-36); judgments under the Uniform Parentage Act (14-17-14); paternity acknowledgment forms (14-19-03); various types of lien statements (35-13-02, 35-17-04, 35-20-02, 35-31-02, 35-34-04, 35-34-05); and secured transaction financing statements (41-09-73).
At the same time, state law also makes misappropriation of a social security number a Class C felony (12.1-23-11) and allows substantial damages for fraudulent use of a social security number (32-03-52).
Several statutes also exempt social security numbers from disclosure in certain situations, such as when included on a death certificates (23-02.1-19); when given in applying for a professional license (43-50-04); or when given in making a consumer complaint (44-04-18.17). These statutes contain specific statements indicating that the referenced records are exempt from N.D.C.C. section 44-04-18, which states in part that, "Except as otherwise specifically provided by law, all records of a public entity are public records, open and accessible for inspection during reasonable office hours." The language of these statutes suggests that, in order to exempt part of a public record from public disclosure, legislative action is required.
Courts seem to fall under the definition of "public entity" set out in N.D.C.C. section 44-04-17.1 (12). On the other hand, in State ex. rel. Williston Herald v. O'Connell, 151 N.W.2d 758 (N.D. 1967), the Supreme Court said that courts were not subject to the requirements of N.D.C.C. section 44-04-18.
The Supreme Court has established its own court information disclosure policy in Admin. Rule 41, and it has chosen to exempt certain records from disclosure by rule. As a preliminary step in restricting access to social security numbers and other personal information already contained in court records, staff has prepared proposed amendments to Admin. Rule 41 making certain types of personal information exempt from disclosure. The proposed amendments are at lines 20-22 and 43-44 of the attached amended rule. The language of the amendments is based on the language in N.D.C.C. § 44-04-18.7 which limits disclosure of personal information collected during criminal investigations.
Fargo attorney Mike Gjesdahl has submitted suggestions on how to handle material that will be made part of court records in the future. In particular, he looks to Minnesota Rule of Practice 313 on Confidential Numbers and Tax Returns. Under this rule, people submitting documents to the court would submit confidential numbers on a separate form, which could not be disclosed. The materials provided by Mr. Gjesdahl, including a copy of the Minnesota rule, are included in the meeting materials. The Committee may wish to discuss whether North Dakota should consider adopting such a rule, and where in the rules such a rule would be placed.