N.D. Sup. Ct. Admin. R.
RULE 41. ACCESS TO
JUDICIAL COURT RECORDS
Policy. Judicial records are generally open to the public for examination, inspection, and copying during regular office hours, subject to reasonable inspection restrictions to ensure the integrity of those records. This rule, does not affect the confidential status of certain records whose confidentiality is required by state or federal law or court rule or policy. This rule seeks to balance the competing interests of disclosure and confidentiality by providing guidelines to courts and court personnel in determining the accessibility of judicial records in the custody of the judicial system. Purpose. The purpose of this rule is to provide a comprehensive framework for public access to court records. Every member of the public will have access to court records as provided in this rule.
Section 2. Definitions.
In this Rule:
(a)"Court record," regardless of the form, includes:
(1) any document, information, or other thing that is collected, received, or maintained by court personnel in connection with a judicial proceeding;
(2) any index, calendar, docket, register of actions, official record of the proceedings, order, decree, judgment, minute, and any information in a case management system created by or prepared by court personnel that is related to a judicial proceeding; and
(3) information maintained by court personnel pertaining to the administration of the court or clerk of court office and not associated with any particular case.
(b) "Court record" does not include:
(1) other records maintained by the public official who also serves as clerk of court.
(2) information gathered, maintained or stored by a governmental agency or other entity to which the court has access but which is not part of the court record as defined in this rule.
(c) "Public access" means that the public may inspect and obtain a copy of the information in a court record.
(d) "Remote access" means the ability to electronically search, inspect, or copy information in a court record without the need to physically visit the court facility where the court record is maintained.
(e) "Electronic form" means information in a court record that exists as:
(1) electronic representations of text or graphic documents;
(2) an electronic image, including a video image, of a document, exhibit or other thing;
(3) data in the fields or files of an electronic database; or
(4) an audio or video recording, analog or digital, of an event or notes in an electronic file from which a transcript of an event can be prepared.
(f) Definitions Of Other Key Terms.
(1) "Custodian" means the clerk of
the district court.
(2) "Custodial judge" means
, for any record of a judicial proceeding in a case file in the district court, the judge presiding in that case or the judge designated in writing by the presiding judge of the judicial district; and, for any record not in a case file in the district court, the presiding judge of the judicial district or the judge designated in writing by the presiding judge the judicial officer assigned to decide a records access issue.
Personnel personnel" means clerks, judges, and staff of a district court. (5) "Records" means all documents and things filed or docketed in the office of clerk of district court and does not include administrative records.
Records Subject to Examination, Inspection, and Copying. Except as provided in Sections 4, 5, 8, and 9, all records are subject to examination, inspection, and copying. Access to Court Records.
(a) General Access Rule.
(1) Information in the court record is accessible to the public except as prohibited by this rule.
(2) There shall be a publicly accessible indication of the existence of information in a court record to which access has been prohibited, which indication shall not disclose the nature of the information protected.
(3) A court may not adopt a more restrictive access policy or otherwise restrict access beyond that provided for in this policy, nor provide greater access than that provided for in this policy.
(b) Obtaining Access To Court Records.
(1) Request for Court Records. Any person desiring to inspect, examine, or copy a court record shall make an oral or written request to the custodian. If the request is oral, the custodian may require a written request if the custodian determines that the disclosure of the record is questionable or the request is so involved or lengthy as to need further definition. The request must clearly identify the record requested so that the custodian can locate the record without doing extensive research. Continuing requests for a document not yet in existence may not be considered. A clerk of court is not required to allow access to more than ten files per day per requestor but may do so in the exercise of the clerk's discretion if the access will not disrupt the clerk's primary function.
(2) Response To Request. The custodian shall respond to the request as promptly as practical. If the request for access and inspection is granted, the custodian may set reasonable time and manner of inspection requirements that ensure timely access while protecting the integrity of the records and preserving the affected office from undue disruption. The inspection area must be within full view of court personnel whenever possible. The person inspecting the records may not leave the court facility until the records are returned and examined for completeness. If a request cannot be granted promptly, or at all, an explanation must be given to the requestor as soon as possible. The requesting person has a right to at least the following information: the nature of any problem preventing access and the specific statute, federal law, or court or administrative rule that is the basis of the denial. The explanation must be in writing if desired by the requestor.
(3) Response by Custodial Judge. If a custodian determines there is a question
as to about whether a record should be disclosed, or if a written request is made for a ruling by a judge after the custodian denies or grants the request, the custodian shall refer the request to the custodial judge for determination. The custodial judge shall use the standards listed in Section 3(g) to determine whether the record should be disclosed.
(c) Court Records In Electronic Form Presumptively Subject to Remote Access by the Public. The following information in court records should be made remotely accessible to the public if it exists in electronic form, unless public access is restricted under this rule:
(1) litigant/party indexes to cases filed with the court;
(2) listings of new case filings, including the names of the parties;
(3) register of actions showing what documents have been filed in a case;
(4) calendars or dockets of court proceedings, including the case number and caption, date and time of hearing, and location of hearing;
(5) judgments, orders, or decrees in a case and liens affecting title to real property.
(6) Reports specifically developed for electronic transfer approved by the state court administrator. Reports which are generated in the normal course of business are available if the report does not contain information which is confidential by law or court rule.
Terminals or computers for the public's access to court information systems will be allowed to access information which would otherwise be available.
(d) Requests for Bulk Distribution of Court Records. Bulk distribution is defined as the distribution of all, or a significant subset, of the information in court records, as is and without modification or compilation.
(1) Bulk distribution of information in the court record is permitted for court records that are publicly accessible under Section 3(a).
(2) A request for bulk distribution of information not publicly accessible can be made to the court for scholarly, journalistic, political, governmental, research, evaluation or statistical purposes where the identification of specific individuals is ancillary to the purpose of the inquiry. Prior to the release of information under this subsection the requestor must comply with the provisions of Section 3(g).
(e) Access to Compiled Information From Court Records.
(1) Compiled information is defined as information that is derived from the selection, aggregation or reformulation by the court of some of the information from more than one individual court record.
(2) Any member of the public may request compiled information that consists solely of information that is publicly accessible and that is not already available under Section 3(b) or in an existing report. The court may compile and provide the information if it determines, in its discretion, that providing the information meets criteria established by the court, that the resources are available to compile the information and that it is an appropriate use of public resources. The court may delegate to its staff or the clerk of court the authority to make the initial determination as to whether to provide compiled information.
(3) Requesting compiled restricted information.
(A) Compiled information that includes information to which public access has been restricted may be requested by any member of the public only for scholarly, journalistic, political, governmental, research, evaluation, or statistical purposes.
(B) The request shall:
(i) identify what information is sought ,
(ii) describe the purpose for requesting the information and explain how the information will benefit the public interest or public education, and
(iii) explain provisions for the secure protection of any information requested to which public access is restricted or prohibited.
(C) The court may grant the request and compile the information if it determines that doing so meets criteria established by the court and is consistent with the purposes of the access policy, the resources are available to compile the information, and that it is an appropriate use of public resources.
(D) If the request is granted, the court may require the requestor to sign a declaration that:
(i) the data will not be sold or otherwise distributed, directly or indirectly, to third parties, except for journalistic purposes,
(ii) the information will not be used directly or indirectly to sell a product or service to an individual or the general public, except for journalistic purposes, and
(iii) there will be no copying or duplication of information or data provided other than for the stated scholarly, journalistic, political, governmental, research, evaluation, or statistical purpose.
The court may make such additional orders as may be needed to protect information to which access has been restricted or prohibited.
Section 4. Records Exempt from Disclosure. The following records are confidential and exempt from disclosure:
(f) Court Records Excluded From Public Access. The following information in a court record is not accessible to the public:
Documents and records to the extent access is otherwise restricted by state or federal law or court rule or policy. A partial list is contained in the Appendix to this rule.
information that is not accessible to the public under federal law;
(2) information that is not accessible to the public under state law, court rule or case law, including:
Affidavits affidavits or sworn testimony and records of proceedings in support of the issuance of a search or arrest warrant pending the return of the warrant .;
3B) Information information in a complaint and associated arrest or search warrant to the extent confidentiality is ordered by the court under Section 29-05-32 or 29-29-22, NDCC.;
4C) Documents documents filed with the court for in-camera examination pending disclosure.
5D) Except except for orders of the court, domestic violence protection order files and disorderly conduct restraining order files when the restraining order is sought due to domestic violence .;
6E) Names names of qualified jurors and contents of jury qualification forms if disclosure is prohibited or restricted by order of the court.
(G) records of deferred impositions of sentences resulting in dismissal;
(H) social security numbers, credit, debit, or electronic fund transfer card numbers, and any financial account numbers;
(I) judge and court personnel work material, including personal calendars, communications from law clerks, bench memoranda, notes, work in progress, draft documents and non-finalized documents; and
(J) any other document or record when access is restricted by state law or court rule or policy.
Section 5. Other Prohibitions or Limitations on Disclosure. Records subject to inspection, examination, and copying under Section 3 and not exempt from disclosure under Section 4, may be prohibited or limited from disclosure by order of the court on a case-by-case basis. In ruling on whether specific records should be disclosed or sealed by order of the court, the court shall determine and make a finding of fact as to whether the interest for closure exceeds the interest in public disclosure. If the court prohibits or limits a disclosure, it must fashion the least restrictive exception from disclosure. In applying these rules, the court is referred to traditional legal concepts in the law of North Dakota. Section 6. Request for Records. Any person desiring to inspect, examine, or copy a judicial record shall make an oral or written request to the custodian. If the request is oral, the custodian may require a written request if the custodian determines that the disclosure of the record is questionable or the request is so involved or lengthy as to need further definition. The request must clearly identify the record requested so that the custodian can locate the record without doing extensive research. Continuing requests for a document not yet in existence may not be considered. A clerk of court is not required to allow access to more than ten files per day per requestor but may do so in the exercise of the clerk's discretion if the access will not disrupt the clerk's primary function. Section 7. Response to Request. The custodian shall respond to the request as promptly as practical. If the request for access and inspection is granted, the custodian may set reasonable time and manner of inspection requirements that ensure timely access while protecting the integrity of the records and preserving the affected office from undue disruption. The inspection area must be within full view of court personnel whenever possible. The person inspecting the records may not leave the court facility until the records are returned and examined for completeness. If a request cannot be granted promptly, or at all, an explanation must be given to the requestor as soon as possible. The requesting person has a right to at least the following information: the nature of any problem preventing access and the specific statute, federal law, or court or administrative rule that is the basis of the denial. The explanation must be in writing if desired by the requestor. Section 8. Response by Custodial Judge. If a custodian determines there is a question as to whether a record should be disclosed, or if a written request is made for a ruling by a judge after the custodian denies or grants the request, the custodian shall refer the request to the custodial judge for determination. The custodial judge shall make a written determination as promptly as possible as to whether the record should be disclosed. In the sole discretion of the custodial judge, an informal hearing may be held by the judge on the question of whether the record should be disclosed. The custodial judge shall determine the time and place of the hearing and the notice to be given by the custodian to the requestor. If a hearing is held under this rule, the response to the requestor may be delayed a reasonable time after the conclusion of the hearing. Section 9. Motion Regarding Sealing of Records. Any person, or the court on its own motion, may move, in the judicial proceeding in which records are filed, to seal or unseal a part or all of the records in the proceeding. The custodial judge shall hear the motion after the moving party gives notice of the hearing to all parties to the proceeding and any other person designated by the judge. The custodial judge shall issue a written decision on the motion to seal or unseal records, which the court may reconsider, alter, or amend at any time. A record that is the subject of a motion to seal is confidential until a written decision on the motion is issued. Section 10. Review of Decision on Access, Sealing, or Unsealing. If a custodian denies or grants a request for the examination or copying of a record under Section 7, the requestor may file a request for a ruling by the custodial judge. If the custodial judge denies or grants a request for the examination or copying of a record under Section 8, the sole remedy of the requestor is to institute a proceeding in district court. Section 11. Status of Records on Appeal. The status of a record transmitted to the Supreme Court on appeal continues unless the Supreme Court orders otherwise. Section 12. Cost of Copying Records. The custodian or custodial judge shall determine the cost to be charged to a person requesting a copy of a record. Section 13. Application. This rule applies to all judicial records existing on or after the date of adoption of this rule.
(3) This rule does not preclude access to records by the following persons in the following situations:
1A) Federal, state, and local officials, or their agent, examining a judicial record in the exercise of their official duties and powers.
2B) Parties to an action and their attorneys examining the court file of the action, unless restricted by order of the court.
3C) Disclosure by the custodian of statistical information that is not descriptive of an identifiable person.
(4) A member of the public may request the court to allow access to information excluded under this provision as provided for in Section 3(g)(2).
(g) Requests To Prohibit Public Access to Information In Court Records Or To Obtain Access to Restricted Information.
(1) Request to Prohibit Access.
(A) A request to prohibit public access to information in a court record may be made by any party to a case, the individual about whom information is present in the court record, or on the court's own motion upon notice as provided in Section 3(g)(3).
(B) The court must decide whether there are sufficient grounds to overcome the presumption of openness of judicial records and prohibit access according to applicable constitutional, statutory and common law.
(C) In deciding whether to prohibit access the court must consider that the presumption of openness may only be overcome by an overiding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The court must articulate this interest along with specific findings sufficient to allow a reviewing court to determine whether the closure order was properly entered.
(D) The closure of the records must be no broader than necessary to protect the articulated interest. The court must consider reasonable alternatives to the closure such as redaction or partial closure, and the court must make findings adequate to support the closure. The court may not deny access only on the ground the record also contains confidential or closed information.
(E) In restricting access the court will use the least restrictive means that will achieve the purposes of the access policy and the needs of the requestor.
(2) Request to Obtain Access.
(A) A request to obtain access to information in a court record to which access is prohibited under Section 3(f) or 3(g)(1) or has been denied under Section 3(b) may be made by any member of the public or on the court's own motion upon notice as provided in Section 3(g)(3).
(B) In deciding whether to allow access, the court must consider whether there are sufficient grounds to overcome the presumption of openness of judicial records and continue to prohibit access according to applicable constitutional, statutory and common law. In deciding this the court must consider the same standards as outlined in Section 3(g)(1).
(3) Form of Request.
(A) The request shall be made by a written motion to the court.
(B) The requestor will give notice to all parties in the case. The court must also require that notice be given to anyone who has requested notice of such motions or to any previously designated person or organization to receive notice of such motions, and that the notice is placed upon the court docket.
(C) The court may require notice to be given by the requestor or another party to any individuals or entities identified in the information that is the subject of the request. When the request is for access to information to which access was previously prohibited under Section 3(f)(1), the court will provide notice to the individual or entity that requested that access be prohibited either itself or by directing a party to give the notice.
(D) The notice must be such that the public and other parties have the opportunity to be heard on such motions. The opportunity to be heard must consist of at least the opportunity to submit written briefs and, if requested by any party, to present oral argument.
Section 4. When Court Records May Be Accessed.
(a) Court records will be available for public access in the courthouse during normal business hours. Court records in electronic form to which the court allows remote access under this policy will be available for access subject to normal business hours and subject to technical failures or normal system maintenance announced in advance.
(b) Upon receiving a request for access to information the court will respond within a reasonable time regarding the availability of the information and provide the information within a reasonable time.
Section 5. Fees for Access. The court may charge a fee for access to court records in electronic form, for remote access, or for bulk distribution or compiled information. To the extent that public access to information is provided exclusively through a vendor, the court will ensure that any fee imposed by the vendor for the cost of providing access is reasonable. Section 6. Obligations Of Vendors Providing Information Technology Support To A Court To Maintain Court Records.
(a) If the court contracts with a vendor to provide information technology support to gather, store, or make accessible court records, the contract will require the vendor to comply with the intent and provisions of this access policy. For purposes of this section, "vendor" includes a state, county or local governmental agency that provides information technology services to a court.
(b) By contract the vendor will be required to comply with the requirement of this rule to educate litigants, the public, and its employees and subcontractors about the provisions of the access policy.
(c) By contract the vendor will be required to notify the court of any requests for compiled information or bulk distribution of information, including the vendor's requests for such information for its own use.
Section 7. Information and Education Regarding Access Policy.
(a) Dissemination of Information to Litigants About Access To Information In Court Records. The court will make information available to litigants and the public that information in the court record about them is accessible to the public, including remotely and how to request to restrict the manner of access or to prohibit public access.
(b) Dissemination of Information to the Public About Accessing Court Records. The Court will develop and make information available to the public about how to obtain access to court records under this rule.
(c) Education of Judges and Court Personnel About an Access Policy. The Court and clerk of court will educate and train their personnel to comply with an access policy so that Court and clerk of court offices respond to requests for access to information in the court record in a manner consistent with this policy. Presiding judges shall insure that all judges are informed about the access policy.
(d) Education About Process to Change Inaccurate Information in a Court Record. The Court will have a policy and will inform the public of the policy by which the court will correct inaccurate information in a court record.
Adopted on an emergency basis effective October 1, 1996; Amended and adopted effective November 12, 1997; March 1, 2001________________; Appendix amended effective August 1, 2001, to reflect the name change of State Bar Board to State Board of Law Examiners.
SOURCE: Conference of Chief Justices/Conference of State Court Administrators: Guidelines for Public Access to Court Records.
Statutes, court rules and policies, and federal regulations making certain records confidential, in whole or in part, include:
ND Century Code
12.1-32-07.2(2) Records and papers concerning deferred imposition of sentence when guilty plea is withdrawn or guilty verdict set aside
12.1-32-09(3) Notice specifying defendant as a dangerous special offender for sentencing purposes
12.1-35-03 Information identifying a child victim of a crime
14-02.1-03.1(3), (4), (11) Records involving judicial authorization for abortion for unmarried minor
14-09.1-06 Mediation proceedings concerning contested child support, custody, or visitation
14-15-16(4) Adoption proceedings
14-17-19 Paternity proceedings
23-07.6-11 Confinement proceedings for those with communicable diseases
23-02.1-27 Certain information in birth and death certificates
25-03.1-43 Mental health commitments
25-03.3-03 Commitment proceedings for sexually dangerous individuals
27-20-51 Juvenile court records
27-09.1-12(4) Jury selection records
29-10.1-30, -31 Grand jury proceedings
30.1-11-01 Wills deposited for safekeeping
37-01-34 Recorded military discharge papers
50-06-05.1(15) Social-psychological evaluations and predisposition reports provided by department of human services
Court Rules and Policies
N.D.R,Civ.P. 26(c) Protective orders
N.D.R.Crim.P. 32(c) Presentence investigation reports
N.D.R.Crim.P. 44(b) Ex parte application for financial assistance
Administrative Rule 40 Audiotapes of closed or confidential proceedings
Administrative Policy 215 Access to computer-based data
Administrative Policy 402 Access to Juvenile Court Records
22 C.F.R. Section 51.33 Passport records
Boards and commissions governed by rules adopted by the Supreme Court include: Commission for Continuing Legal Education; Disciplinary Board; Judicial Conduct Commission, State Board of Law Examiners.