TO: Joint Procedure Committee
FROM: Andy Forward
DATE: September 10, 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
The Supreme Court has reviewed the comments received regarding Rules 3.4 and 41 and has returned these rules to the Committee for further review and changes. Numerous comments were received from district court clerks about the difficulties of implementing the rules. Staff has prepared amendments to Rules 3.4 and 41 based on the comments received. The proposed amendments are attached for the Committee's discussion. The May changes have been left intact and the new changes are highlighted.
Many of the clerks felt they should not be responsible for reviewing documents for protected information; it should be the responsibility of the parties filing the documents to make sure protected information is redacted. It is proposed that a new subdivision (b) be added to Rule 3.4 to indicate it is the parties' responsibility to make sure no protected information is contained in filed documents. The language of the amendment is similar to Minn. Gen. R. Prac. 11.02(a) and the Advisory Committee Notes to Fed.R.Civ.P. 5.2, which are provided.
Rule 3.4(f) has created some confusion regarding use of the word "seal." There was a comment questioning whether placing confidential documents in a red folder on the left side of the file would satisfy the requirement "file an unredacted version of the document under seal," or whether the documents must be physically sealed in an envelope. Subdivisions (d) and (g) also use the term "seal," as does Fed.R.Civ.P. 5.2, which is similar to Rule 3.4. The Committee may wish to consider using a different word other than "seal," such as "confidential."
There were also comments from the clerks regarding Rule 3.4(f) and (g). Some clerks are not in favor of separately docketing redacted and unredacted documents under 3.4(f). They believe it is confusing and creates extra work. The clerks also believe filing a reference list should be mandatory, not optional under 3.4(g)(1). One suggestion may be to delete 3.4(f) and make mandatory the filing of a reference list under 3.4(g)(1). Additionally, it is proposed that the term "confidential information form" be used in 3.4(g)(1) and (2) rather than the term "reference list." The term "reference list" comes from Fed.R.Civ.P. 5.2 and the term "confidential information form" comes from Minn. Gen. R. Prac. 11.02(a). A proposed Appendix H, Confidential Information Form, is attached for the Committee's review. It is patterned after Minnesota's Form 11.1, Confidential Information Form, which is also attached.
There was a suggestion from the Court regarding Rule 3.4(g)(2), which was deleted at the May meeting. It is proposed that it be left in, but changed to read "when known," the prosecutor must file a confidential information form that includes the defendant's social security number and birth date. This is an attempted compromise between the prosecutors and the clerks.
The primary concern regarding Rule 41 deals with how documents containing protected information filed before March 1, 2009 (when Rule 3.4 was adopted), should be handled when requested by a member of the public. The clerks feel more work has been placed on them because they have been checking the documents for protected information and then redacting the protected information. It was the Court's opinion that the clerks should not have to review documents filed before March 1, 2009, for protected information. Therefore, it is proposed that a new Section 3(c) be added to indicate the clerks are not required to review and redact information in a court record filed before the adoption of Rule 3.4. The language of the amendment is similar to the comment to Wash. GR 31(e).
It was suggested there be a procedure by which a party could request that protected information be removed from a document filed before March 1, 2009. Section 6 of Rule 41 deals with requests to prohibit public access to information in court records. It is proposed that a new Section 6(a) be added to allow a party or nonparty to request redaction of protected information from court records filed before March 1, 2009. The process would allow the clerk of court to redact protected information specified in Rule 3.4(a). A party would have to obtain a court order under Section 6(b) to prohibit access to information not specified in Rule 3.4(a).
Staff was asked to check how Minnesota deals with requests for documents that may contain protected information. Rule 11, Minn. Gen. R. Prac., Submission of Confidential Information, was adopted in 2005. Minnesota's Rules of Public Access to Records of the Judicial Branch became effective in 1988. Staff spoke with Sandy Nelson, Clay County Court Operations Supervisor, about how Minnesota handles requests for documents that may contain protected information. Ms. Nelson said the clerks will review the document and will redact any protected information. She said there are not a lot of requests for documents containing protected information, such as documents that are part of a family law or probate case.
Another concern of the clerks deals with probate, guardianship, and conservator cases. Many clerks feel these cases should not be accessible to the public because they contain a lot of protected and confidential information. If the Committee decides these cases should be restricted, an amendment could be added to Rule 41, Section 5 to reflect this.