TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 5, 2012
RE: Rule 41, N.D.Sup.Ct.Admin.R., Access to Court Records
The Committee proposed an amendment to Rule 41 that would have allowed certain criminal defendants whose charges had been dismissed, who had been acquitted, or whose records were old to move to have Internet access to those records restricted. This proposal encountered significant objections, especially from the news media. Mr. Jack McDonald appeared at the Committee's September 2011 meeting to explain the objections and he also appeared at the Supreme Court hearing on the proposed amendments.
The Court considered the Committee's proposed amendments along with the comments it received on the proposal, and ultimately approved a modified version of the Committee's proposal.
The Committee proposed these amendments:
(6) The court 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.
The Court approved these amendments:
(6) If the court concludes, after conducting the balancing analysis and making findings as required by paragraphs (1) through (5), that the interest of justice will be served,0 it 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; or
(B) if the defendant is acquitted.
If the court grants a request to prohibit public Internet access to an electronic court record in a criminal case, the search result for the record must display the words "Internet Access Prohibited under N.D.Sup.Ct. Admin.R 41."
The Committee had indicated at the time that the original amendments were proposed that it would like to have a form motion and order developed so that people seeking to have Internet access to their records restricted could proceed without hiring an attorney. The Committee may wish to discuss whether it still wants to develop the form motion and order, given the Court's changes to the original proposal. Part of the discussion could focus on what content these forms should contain. For example, under the Committee's original proposal, the court was not required to perform a balancing test or make findings. To ensure that a motion under the language the Court approved is not immediately rejected, a form motion might contain a "fill-in-the-blanks" balancing analysis and have a place for the person submitting it to include all the necessary facts and information the court might require to perform the balancing test.