October 6, 2005
Honorable Gerald W. VandeWalle, Chief Justice
North Dakota Supreme Court
600 East Boulevard Avenue
Bismarck, ND 58505-0530
Re: Administrative Rule 41Access to Judicial Records
Supreme Court No. 20040335
Dear Chief Justice:
The Court Technology Committee was tasked in 2003 to review and revise North Dakota's rules on public access to court records. In August 2004, the Committee reported back to the Supreme Court and provided the Court with a thoroughly reworked version of Admin. Rule 41.
The Court sought comments on the amended rule. After reviewing the comments, the Court by letter dated January 20, 2005, referred the amended rule to the Joint Procedure Committee for further review and recommendation.
The Committee discussed the rule at its April and September 2005 meetings. In large part, the Committee approved of the Court Technology Committee's proposal. The Committee, however, made the following additional amendments:
Line 32 -- the Committee moved the definition of "bulk distribution" to the definitions section of the rule;
Lines 168-171 -- the Committee added restrictions on public access to juror related records;
Line 179 -- the Committee changed the word "policy" to "order";
Lines 242-243 -- the Committee added language clarifying that parties and attorneys cannot access court work product material in a case file;
Line 258 -- the Committee deleted language that followed the word "interest":
"based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest";
Line 280 -- the Committee deleted the a second sentence on notice: "The court must also require that notice be given to anyone who has requested notice of such motions or to any previously designated person or organization to receive notice of such motions, and that the notice is placed upon the court docket."
Line 285 -- the Committee deleted a paragraph on notice: "(D) The notice must be such that the public and other parties have the opportunity to be heard on such motions. The opportunity to be heard must consist of at least the opportunity to submit written briefs and, if requested by any party, to present oral argument."
Line 289 -- the Committee amended the second sentence of the paragraph to clarify when remote access to court records would be available.
Line 304 and Line 308 -- The Committee deleted a paragraph and the former Section 7, both of which referred to information and education regarding court policy on access to records.
The Committee discussed a proposal to add language to the rule restricting access to all records in domestic relations matters. The Committee rejected this proposal as too sweeping a limitation on public access.
The Committee also discussed a proposal based on a submitted public comment and on the new Minnesota public access rule that would have allowed remote access only to court-generated records. Under this proposal, the public would have been able to access party-generated records at the courthouse, but not over the Internet. The Committee rejected this proposal as premature given the very limited types of records that the rule proposal would require to be made available by remote access.
A copy of the proposed amendments to Admin. Rule 41 is attached. Thank you for referring this matter to the Joint Procedure Committee.
Dale V. Sandstrom
Chair, Joint Procedure Committee