TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 9, 2009
RE: Rule 41, N.D. Sup. Ct. Admin. R., Access to Court Record
The Supreme Court has approved the changes the Committee recommended to Rule 41 and these changes will take effect March 1, 2009. A copy of the approved amendments to Rule 41 is attached.
At the September meeting, members of the Committee expressed some concerns about public access to juror information. Committee member Bruce Quick noted similar concerns in a letter dated Dec. 22, 2008, which is attached. The Committee instructed staff to pass these concerns along to the Jury Standards Committee.
Staff talked to with Jim Ganje, Jury Standards staff attorney. Mr. Ganje said that Jury Standards was taking steps to make sure that paper and online forms were designed in a way that would prevent jury phone number and addresses from being carelessly disseminated and would inform potential jurors that they could request the court to limit access to confidential information.
Mr. Ganje also pointed out that the pending amendments to Rule 41 could be read to restrict access to all juror address information in criminal cases. His email on this point is attached. New language in Section 5(b)(8) restricts access to "the home address of an individual" in criminal cases. This new language was approved by the Committee in April 2008 as part of the Committee's work on drafting the new privacy protection measures that are contained in the new N.D.R.Ct. 3.4.
The Committee did not specifically review this language when it addressed the question of juror information at the September 2008 meeting. Instead, the Committee reviewed Forum Communications Co. v. Paulson and discussed the opinion's conclusion that most information in juror questionnaires is public. A copy of the opinion is attached. In Forum at ¶ 22, the court said that "recognized privacy concerns require redaction from the questionnaires of the jurors' date of birth, and addresses and telephone numbers that are not generally available to the public." The Committee discussed adding language to Rule 41 that would implement this standard, but in the end it retained the existing language of the rule.
The Committee may wish to discuss whether the language in Section 5(b)(8) that Mr. Ganje highlighted is consistent with the Supreme Court's holding in Forum.
On another issue, Court Administrator Sally Holewa is already receiving negative feedback from an assortment of background searching companies on the new restrictions on access to birth dates in court records that were added to Rule 41. Ms. Holewa said that some administrative changes to Rule 41 may be needed so that "legitimate businesses" can still get enough information from the court to provide accurate background checks. She expressed some concern about the long-term impact of N.D.R.Ct. 3.4, which prevents parties from providing full birth dates in court records. If the courts do not have birth dates in their records, no one will be able to use a birth date to confirm the identity of a person named in a court record.
Some other states do allow access to birth dates while restricting access to other personal
information. In Minnesota, for example, online court records include the birth date of parties
to court actions but do not include the street address or phone number of the party. This
allows confirmation of the identity of the party without providing information that would
allow persons to easily contact and possibly harass the party.