TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 13, 2011
RE: Rule 41, N.D.Sup.Ct.Admin.R., Access to Court Records
Rule 41 came before the Committee at the September 2010 meeting. The Committee discussed a letter from attorney Tom Dickson questioning why records of deferred impositions of sentences resulting in dismissal are not accessible to the public under Rule 41 while dismissals resulting from other reasons remain accessible.
The Committee discussed the issue of records access at length, particularly easy access to records of dismissed criminal charges over the Internet. Responding to the Committee's concerns, Justice Maring wrote a letter to the Chief Justice requesting that the appropriate body study whether Internet records of dismissed criminal charges can be displayed in a way that makes it clear the charge was dismissed. After referral from the Supreme Court, the Court Technology Committee and the Odyssey Operations Group both reviewed this issue.
On April 8, staff took part in the Odyssey Operations Group meeting to discuss the latest developments on this issue. With Odyssey now in place across the state, system managers now would have the ability to create a new security group and segregate the group's files so they could not be viewed by the public. Therefore, if the Court decided that dismissed criminal cases and cases beyond the records retention period should not be available over the Internet, these cases could be segregated. The Odyssey Operations Group would appreciate having the Committee's opinion on whether these cases should be segregated as a group or on a case-by-case basis.
The Committee also instructed staff to research approaches taken by other states on access to records of dismissed criminal charges. In doing this research, staff found out that on June 26, 2010, the Board of Governors of the State Bar of Wisconsin had petitioned the Wisconsin Supreme Court for a revision of the Wisconsin rules on access to court records.
The Wisconsin Bar Petition, which is attached, seems to raise some of the same concerns the Committee raised in its September discussion. The proposed Wisconsin amendments likewise seems to present a workable approach to limiting access to certain court records. The Wisconsin Supreme Court, however, has not yet acted on the Bar Petition. For purposes of discussion, staff has drafted proposed amendments to Rule 41 based in part on the Wisconsin proposal. The amendments would allow a court to limit access to certain electronic records in a criminal case.
The proposed amendments are attached and would provide that:
(6) The court, in its discretion, may prohibit public Internet access to an individual defendant's electronic court record in a criminal case:
(A) if the charges against the defendant are dismissed;
(B) if the defendant is acquitted;
(C) if the retention period for the records of the case under N.D.Sup.Ct.Admin.R. 19 has expired; or
(D) if the court concludes, after conducting a balancing analysis and making findings as required by paragraphs (1) through (5) of this subdivision, that the interest of justice will be served.
Court Administrator Sally Holewa for reviewed this proposal and she said that it could help solve some of the problems currently faced by criminal defendants and court staff in regard to Internet access to criminal records. She said that she gets several calls daily from people who have had criminal charges dismissed asking whether their records can be removed from the Internet. She said that if the Committee decides to approve the proposal, it should also consider drafting a simple request form for members of the public to use to ask for limiting Internet records access.
The Committee may wish to consider the issue of records display if it decides to adopt the proposed amendments. If a court approves limiting Internet access to a defendant's record, how should the record be displayed in response to an Internet records search? Should there be an "access denied" display, "access permitted only from clerk's office," or a "not found" display? If "not found" is displayed, how will a searcher know that a record exists for the person at the courthouse?
The proposed amendments to Administrative Rule 41 are attached.