TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: May 1, 2009
RE: Rule 3.4, N.D.R.Ct., Privacy Protection for Filings Made with the Court; Rule 41, N.D.Sup.Ct.Admin.R., Access to Court Records
Rule 3.4 went into effect March 1, 2009. Staff has received a variety of comments from court staff, attorneys and the public on issues regarding Rule 3.4 (and its interplay with Rule 41) since that date. Staff has prepared proposed amendments to Rule 3.4 based on the comments received. The proposed amendments are attached for the Committee's discussion.
The requirement that the home street address of an "individual" in a criminal case be redacted (and prohibited from release by the court under Rule 41) has generated many comments. News organizations have complained that barring release of a criminal defendant's street address creates confusion. Court officials also believe the rule bars them from releasing defendant addresses to agencies that provide services, like drug testing, to defendants. Therefore, it is proposed that Rule 3.4(a) and Rule 41 be amended to only bar the release of "witness or juror" addresses in a criminal case.
While barring release of street address information of jurors in criminal cases is arguable contrary to the Supreme Court's holding in the Forum case, release of this information is seemingly barred under the "individual" terminology now used in the rule. The Committee may wish to consider whether the information bar and redaction requirement should be limited only to witnesses in criminal cases, or whether there should be a street address redaction requirement at all.
If the Committee decides that release of a criminal defendant's street address should continue to the restricted, the Committee may wish to consider adding an exemption to Rule 41 for agencies providing services to defendants.
Rule 3.4(b)(7)'s redaction exemption for charging documents and affidavits has also generated comments because it has caused problems for the clerks. The clerks have decided that they are bound by Rule 41's restrictions on information disclosure so they have been checking, and redacting themselves, documents that are open to the public. Because criminal charging documents are traditionally public and a matter of interest to many, much of the clerk's review and redaction work has been on these documents. Therefore, it is proposed that the redaction exemption for these documents be deleted.
Rule 3.4(e) was designed to allow parties an option of filing a sealed unredacted document along with a public redacted document. The use of the word "copy" in this subdivision, however, has created some confusion. Some parties have redacted "original" documents and filed an unredacted "copy." Therefore, it is proposed that the language of Rule 3.4(e) be amended to eliminate the use of the term "copy."
Rule 3.4(g)(1) was designed to create a consequence for a party who carelessly fails to redact a document. Because the clerks have decided that they must redact documents themselves if the party failed to do so, Rule 3.4(g)(1) has become essentially meaningless. Therefore, it is proposed that Rule 3.4(g)(1) be deleted. The language in Rule 3.4(g)(2) would be retained because this has become the preferred response when non-conforming documents are submitted.
After Rule 3.4 became effective, some questions were asked about whether redaction was required in confidential cases, such as juvenile matters. Proposed new language in the explanatory note explains that redaction is not required in such cases.
Court Administrator Staff Attorney Jim Ganje has requested that the Committee discuss whether Rule 3.4 or Rule 41 should be amended to address how to deal with protected information revealed in sound files, such as recordings of criminal proceedings. Sound files are court records under Rule 41 and open to the public.
Attached is a letter from Mr. Joel Skjei. He asks the Committee to consider whether Rule
41 should be modified to limit the release of certain information or to put a limit on how
long certain information should be subject to public release. Mr. Skjei's letter expresses in
detail the opinions of a variety of people who have made comments to the court about Rule
41 and the online release of court records many would rather see less disclosure. The
Committee may wish to discuss what level of disclosure is proper in online court records.