TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 8, 2008
RE: Rule 41, N.D. Sup. Ct. Admin. R., Access to Court Records
The Committee has recommended amendments to Administrative Rule 41 and the Committee's proposal is before the Supreme Court as part of the Annual Rules Package. The proposed amendments would restrict public access to birth dates and other personal information in court records. The attached rule draft includes the amendments the Committee has sent to the Supreme Court.
On July 7, 2008, the Supreme Court issued an opinion in Forum Communications Company v. Paulson. A copy of the opinion is attached. In this opinion, the court concluded that juror names and information provided in juror questionnaires was public information. The court said this information could only be restricted based on a court finding an "overriding interest" justifying closure in a particular case. Forum, ¶¶ 20-21.
Section 5 of Rule 41 restricts access to records of juror voir dire and suggests that access to juror names can be restricted with a routine court order. These provisions are inconsistent with the court's decision in Forum. Proposed amendments to Rule 41 are attached that would remove the blanket restriction on access to juror voir dire records. These proposed amendments, and the additional proposals discussed below, are highlighted in gray in the draft.
The court concluded in Forum that some juror information could be restricted based on "recognized privacy concerns." Forum, ¶¶ 22. The proposed amendments to Administrative Rule 41 include the restrictions listed by the court: juror date of birth and the juror address and telephone number if "not generally available to the public."
Another proposed amendment to Administrative Rule 41 has been suggested by Court Administrator Sally Holewa. She provided information on a Georgia measure to restrict access to sexually explicit material in court records from matters involving minors. A summary of the Georgia measure and the bill text is attached. The Administrative Rule 41 draft contains a proposed amendment consistent with the Georgia measure.
Because Administrative Rule 41 is currently before the Supreme Court, the Committee has an opportunity to suggest additional amendments to the rule immediately rather than waiting for the next Annual Rules Package. If the Committee approves the proposed amendments, it may wish to suggest that the Supreme Court act on these proposals when it considers the current Annual Rules Package.