TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 41, N.D. Sup. Ct. Admin. R.; Access to Judicial Records
The Supreme Court recently denied a Motion to Protect Privacy from a party to an appeal. The motion is part of the meeting materials. The party sought to have the appeal proceed with the use of fictitious name because the one of the party's basic contentions was that his mental status had impaired his ability to participate in the real estate transaction at issue. While the Supreme Court generally protects the names of parties in mental health cases, the Court reasoned in this case that the party himself had brought his mental status into question and therefore was not entitled to the protections owed to a party to a commitment proceeding, for example.
It is Supreme Court practice to protect the identity of parties to confidential matters, such as mental health and juvenile proceedings. On the other hand, it is the policy of the unified judicial system to keep judicial records open to the public. Section 4 of Administrative Rule 41 outlines the court's confidentiality policy, while the appendix to the rule provides a listing of proceedings and records that statutes or rules require to be kept confidential.
Confidentiality issues are likely to continue to arise as access to the court system's records increases as more and more court information is posted to the Internet. A recent New York Times article, which is included as part of the meeting materials, explores the controversy created when an Ohio court put all its non-confidential records on-line.
The Committee, therefore, may wish to discuss whether expanded or more detailed confidentiality court proceeding confidentiality rules are required in North Dakota. For the Committee's information, copies of Ariz. St. S. Ct. Rule 123 and Vt. Pub. Acc. Ct. Rec. Rule 6 are attached. Both these states categorize the types of court proceedings and records that are protected. See Ariz. St. S. Ct. Rule 123(d); Vt. Pub. Acc. Ct. Rec. Rule 6 (b). Vermont's rule, for example, specifically protects 32 categories of records in addition to "[a]ny other record to which public access is prohibited by statute."