N.D. Sup. Ct. Admin. R.
RULE 41. ACCESS TO COURT RECORDS
1 Section 1. Purpose.
2 The purpose of this rule is to provide a comprehensive framework for public
3 access to court records. Every member of the public will have access to court records as
4 provided in this rule.
5 Section 2. Definitions.
6 (a) "Court record," regardless of the form, includes:
7 (1) any document, information, or other thing that is collected, received, or
8 maintained by court personnel in connection with a judicial proceeding;
9 (2) any index, calendar, docket, register of actions, official record of the
10 proceedings, order, decree, judgment, minute, and any information in a case management
11 system created by or prepared by court personnel that is related to a judicial proceeding;
13 (3) information maintained by court personnel pertaining to the administration of
14 the court or clerk of court office and not associated with any particular case.
15 (b) "Court record" does not include:
16 (1) other records maintained by the public official who also serves as clerk of
18 (2) information gathered, maintained or stored by a governmental agency or other
19 entity to which the court has access but which is not part of the court record as defined in
20 this rule; and
21 (3) a record that has been disposed of under court records management rules.
22 (c) "Public access" means that the public may inspect and obtain a copy of the
23 information in a court record.
24 (d) "Remote access" means the ability to electronically search, inspect, or copy
25 information in a court record without the need to physically visit the court facility where
26 the court record is maintained.
27 (e) "Bulk distribution" means the distribution of all, or a significant subset, of the
28 information in court records, as is and without modification or compilation.
29 (f) "Compiled information" means information that is derived from the selection,
30 aggregation or reformulation by the court of some of the information from more than one
31 individual court record.
32 (g) "Electronic form" means information in a court record that exists as:
33 (1) electronic representations of text or graphic documents;
34 (2) an electronic image, including a video image, of a document, exhibit or other
36 (3) data in the fields or files of an electronic database; or
37 (4) an audio or video recording, analog or digital, of an event or notes in an
38 electronic file from which a transcript of an event can be prepared.
39 Section 3. General Access Rule.
40 (a) Public Access to Court Records.
Information in the court record is Court records are
accessible to the public
42 except as prohibited by this rule.
43 (2) There must be a publicly accessible indication of the existence of information
44 in a court record to which access has been prohibited, which indication may not disclose
45 the nature of the information protected.
46 (3) A court may not adopt a more restrictive access policy or otherwise restrict
47 access beyond that provided for in this rule, nor provide greater access than that provided
48 for in this rule.
49 (b) When Court Records May Be Accessed.
50 (1) Court records in a court facility must be available for public access during
51 normal business hours. Court records in electronic form to which the court allows remote
52 access will be available for access subject to technical systems availability.
53 (2) Upon receiving a request for access to
court record, the clerk of
54 court must respond as promptly as practical. If a request cannot be granted promptly, or at
55 all, an explanation must be given to the requestor as soon as possible. The requestor has a
56 right to at least the following information: the nature of any problem preventing access
57 and the specific statute, federal law, or court or administrative rule that is the basis of the
58 denial. The explanation must be in writing if desired by the requestor.
59 (3) The clerk of court is not required to search within a court record for specific
60 information that may be sought by a requestor.
61 (c) Access to Court Records Filed Before March 1, 2009. Court records filed
62 before the adoption of N.D.R.Ct. 3.4 may contain protected information listed under
63 N.D.R.Ct. 3.4(a). This rule does not require the review and redaction of protected
64 information from a court record that was filed before the adoption of N.D.R.Ct. 3.4 on
65 March 1, 2009.
66 (d) Fees for Access. The court may charge a fee for access to court records in
67 electronic form, for remote access, for bulk distribution or for compiled information. To
68 the extent that public access to information is provided exclusively through a vendor, the
69 court will ensure that any fee imposed by the vendor for the cost of providing access is
71 Section 4. Methods of Access to Court Records.
72 (a) Access to Court Records at Court Facility.
73 (1) Request for Access. Any person desiring to inspect, examine, or copy a court
74 record must make an oral or written request to the clerk of court. If the request is oral, the
75 clerk may require a written request if the clerk determines that the disclosure of the record
76 is questionable or the request is so involved or lengthy as to need further definition. The
77 request must clearly identify the record requested so that the clerk can locate the record
78 without doing extensive research. Continuing requests for a document not yet in existence
79 may not be considered.
80 (2) Response to Request. The clerk of court is not required to allow access to
81 more than ten files per day per requestor but may do so in the exercise of the clerk's
82 discretion if the access will not disrupt the clerk's primary function. If the request for
83 access and inspection is granted, the clerk may set reasonable time and manner of
84 inspection requirements that ensure timely access while protecting the integrity of the
85 records and preserving the affected office from undue disruption. The inspection area
86 must be within full view of court personnel whenever possible. The person inspecting the
87 records may not leave the court facility until the records are returned and examined for
89 (3) Response by Court. If a clerk of court determines there is a question about
90 whether a record may be disclosed, or if a written request is made under Section 6(b) for a
91 ruling by the court after the clerk denies or grants an access request, the clerk must refer
92 the request to the court for determination. The court must use the standards listed in
93 Section 6 to determine whether to grant or deny the access request.
94 (b) Remote Access to Court Records. The following information in court records
95 must be made remotely accessible to the public if it exists in electronic form, unless
96 public access is restricted under this rule:
97 (1) litigant/party indexes to cases filed with the court;
98 (2) listings of new case filings, including the names of the parties;
99 (3) register of actions showing what documents have been filed in a case;
100 (4) calendars or dockets of court proceedings, including the case number and
101 caption, date and time of hearing, and location of hearing; and
102 (5) reports specifically developed for electronic transfer approved by the state
103 court administrator and reports generated in the normal course of business, if the report
104 does not contain information that is excluded from public access under Section 5 or 6.
105 (c) Requests for Bulk Distribution of Court Records.
106 (1) Bulk distribution of information in the court record is permitted for court
107 records that are publicly accessible under Section 3(a).
108 (2) A request for bulk distribution of information not publicly accessible can be
109 made to the court for scholarly, journalistic, political, governmental, research, evaluation
110 or statistical purposes when the identification of specific individuals is ancillary to the
111 purpose of the inquiry. Prior to the release of information under this subsection the
112 requestor must comply with the provisions of Section 6.
113 (3) A court may allow a party to a bulk distribution agreement access to birth date,
114 street address, and social security number information if the party certifies that it will use
115 the data for legitimate purposes as permitted by law.
116 (d) Access to Compiled Information From Court Records.
117 (1) Any member of the public may request compiled information that consists
118 solely of information that is publicly accessible and that is not already in an existing
119 report. The court may compile and provide the information if it determines, in its
120 discretion, that providing the information meets criteria established by the court, that the
121 resources are available to compile the information and that it is an appropriate use of
122 public resources. The court may delegate to its staff or the clerk of court the authority to
123 make the initial determination to provide compiled information.
124 (2) Requesting compiled restricted information.
125 (A) Compiled information that includes information to which public access has
126 been restricted may be requested by any member of the public only for scholarly,
127 journalistic, political, governmental, research, evaluation, or statistical purposes.
128 (B) The request must:
129 (i) identify what information is sought,
130 (ii) describe the purpose for requesting the information and explain how the
131 information will benefit the public interest or public education, and
132 (iii) explain provisions for the secure protection of any information requested to
133 which public access is restricted or prohibited.
134 (C) The court may grant the request and compile the information if it determines
135 that doing so meets criteria established by the court and is consistent with the purposes of
136 this rule, the resources are available to compile the information, and that it is an
137 appropriate use of public resources.
138 (D) If the request is granted, the court may require the requestor to sign a
139 declaration that:
140 (i) the data will not be sold or otherwise distributed, directly or indirectly, to third
141 parties, except for journalistic purposes,
142 (ii) the information will not be used directly or indirectly to sell a product or
143 service to an individual or the general public, except for journalistic purposes, and
144 (iii) there will be no copying or duplication of information or data provided other
145 than for the stated scholarly, journalistic, political, governmental, research, evaluation, or
146 statistical purpose.
147 The court may make such additional orders as may be needed to protect
148 information to which access has been restricted or prohibited.
149 Section 5. Court Records Excluded From Public Access.
150 The following information in a court record is not accessible to the public:
151 (a) information that is not accessible to the public under federal law;
152 (b) information that is not accessible to the public under state law, court rule, case
153 law or court order, including:
154 (1) affidavits or sworn testimony and records of proceedings in support of the
155 issuance of a search or arrest warrant pending the return of the warrant;
156 (2) information in a complaint and associated arrest or search warrant to the extent
157 confidentiality is ordered by the court under N.D.C.C. §§ 29-05-32 or 29-29-22;
158 (3) documents filed with the court for in-camera examination pending disclosure;
159 (4) case information and documents in Child Relinquishment to Identified
160 Adoptive Parent cases brought under N.D.C.C. ch. 14-15.1;
161 (5) domestic violence protection order files and disorderly conduct restraining
162 order files when the restraining order is sought due to domestic violence, except for
163 orders of the court;
164 (6) documents in domestic violence protection order and disorderly conduct
165 restraining order cases in which the initial petition was dismissed summarily by the court
166 without a contested hearing;
167 (7) names of qualified or summoned jurors and contents of jury qualification
168 forms if disclosure is prohibited or restricted by order of the court;
169 (8) records of voir dire of jurors, unless disclosure is permitted by court order or
171 (9) records of deferred impositions of sentences resulting in dismissal;
172 (10) unless exempted from redaction by N.D.R.Ct. 3.4(c), protected information:
173 (A) except for the last four digits, social security numbers, taxpayer identification
174 numbers, and financial account numbers,
175 (B) except for the year, birth dates, and
176 (C) except for the initials, the name of an individual known to be a minor, unless
177 the minor is a party, and there is no statute, regulation, or rule mandating nondisclosure;
178 (11) judge and court personnel work material, including personal calendars,
179 communications from law clerks, bench memoranda, notes, work in progress, draft
180 documents and non-finalized documents;
181 (12) party, witness and crime victim contact information gathered and recorded by
182 the court for administrative purposes, including telephone numbers and e-mail, street and
183 postal addresses.
184 (c) This rule does not preclude access to court records by the following persons in
185 the following situations:
186 (1) federal, state, and local officials, or their agents, examining a court record in
187 the exercise of their official duties and powers.
188 (2) parties to an action and their attorneys examining the court file of the action,
189 unless restricted by order of the court, but parties and attorneys may not access judge and
190 court personnel work material in the court file.
191 (d) A member of the public may request the court to allow access to information
192 excluded under Section 5 as provided in Section 6.
193 Section 6. Requests to Prohibit Public Access to Information in Court Records or
194 to Obtain Access to Restricted Information.
195 (a) Request to Prohibit Access.
196 (1) A request to the court to prohibit public access to information in a court record
197 may be made by any party to a case, by the individual about whom information is present
198 in the court record, or on the court's own motion on notice as provided in Section 6(c).
199 (2) The court must decide whether there are sufficient grounds to overcome the
200 presumption of openness of court records and prohibit access according to applicable
201 constitutional, statutory and case law.
202 (3) In deciding whether to prohibit access the court must consider that the
203 presumption of openness may only be overcome by an overriding interest. The court must
204 articulate this interest along with specific findings sufficient to allow a reviewing court to
205 determine whether the closure order was properly entered.
206 (4) The closure of the records must be no broader than necessary to protect the
207 articulated interest. The court must consider reasonable alternatives to closure, such as
208 redaction or partial closure, and the court must make findings adequate to support the
209 closure. The court may not deny access only on the ground that the record contains
210 confidential or closed information.
211 (5) In restricting access the court must use the least restrictive means that will
212 achieve the purposes of this rule and the needs of the requestor.
213 (6) If the court concludes, after conducting the balancing analysis and making
214 findings as required by paragraphs (1) through (5), that the interest of justice will be
215 served, it may prohibit public Internet access to an individual defendant's electronic court
216 record in a criminal case:
217 (A) if the charges against the defendant are dismissed; or
218 (B) if the defendant is acquitted. If the court grants a request to prohibit public
219 Internet access to an electronic court record in a criminal case, the search result for the
220 record must display the words "Internet Access Prohibited under N.D.Sup.Ct. Admin.R
222 (b) Request to Obtain Access.
223 (1) A request to obtain access to information in a court record to which access is
224 prohibited under Section 4(a), 5 or 6(a) may be made to the court by any member of the
225 public or on the court's own motion on notice as provided in Section 6(c).
226 (2) In deciding whether to allow access, the court must consider whether there are
227 sufficient grounds to overcome the presumption of openness of court records and
228 continue to prohibit access under applicable constitutional, statutory and case law. In
229 deciding this the court must consider the standards outlined in Section 6(a).
230 (c) Form of Request.
231 (1) The request must be made by a written motion to the court.
232 (2) The requestor shall give notice to all parties in the case.
233 (3) The court may require notice to be given by the requestor or another party to
234 any individuals or entities identified in the information that is the subject of the request.
235 When the request is for access to information to which access was previously prohibited
236 under Section 6(a), the court must provide notice to the individual or entity that requested
237 that access be prohibited.
238 Section 7. Obligations Of Vendors Providing Information Technology Support
239 To A Court To Maintain Court Records.
240 (a) If the court contracts with a vendor to provide information technology support
241 to gather, store, or make accessible court records, the contract will require the vendor to
242 comply with the intent and provisions of this rule. For purposes of this section, "vendor"
243 includes a state, county or local governmental agency that provides information
244 technology services to a court.
245 (b) By contract the vendor will be required to notify the court of any requests for
246 compiled information or bulk distribution of information, including the vendor's requests
247 for such information for its own use.
248 EXPLANATORY NOTE
249 Adopted on an emergency basis effective October 1, 1996; Amended and adopted
250 effective November 12, 1997; March 1, 2001; July 1, 2006; March 1, 2009; March 15,
251 2009; March 1, 2010; March 1, 2012; March 1, 2015. Appendix amended effective
252 August 1, 2001, to reflect the name change of State Bar Board to State Board of Law
254 Section 3(c) was adopted, effective March 1, 2010, to state that protected
255 information may be contained in court records filed before the adoption of N.D.R.Ct. 3.4.
256 Section 4(c) was amended, effective March 15, 2009, to allow parties who enter
257 into bulk distribution agreements with the courts to have access to birth date, street
258 address, and social security number information upon certifying compliance with laws
259 governing the security of protected information. Such laws include the Federal Fair Credit
260 Reporting Act, the Gramm Leach Bliley Act, the USA Patriot Act and the Driver's
261 Privacy Protection Act.
262 Section 5(b)(6) was amended, effective March 1, 2015, to clarify that the
263 restriction on public access to documents in domestic violence protection order and
264 disorderly conduct restraining order cases under this paragraph is limited to cases that
265 were dismissed summarily.
266 Section 5(b)(8) was amended, effective March 15, 2009, to list types of protected
267 information open to the public. The term "financial-account number" in Section 5(b)(8)
268 includes any credit, debit or electronic fund transfer card number, and any other financial
269 account number.
270 Section 5(b)(8) was amended, effective March 1, 2010, to incorporate the
271 exemptions from redaction contained in N.D.R.Ct. 3.4(b). A document containing
272 protected information that is exempt from redaction under N.D.R.Ct. 3.4(b) is accessible
273 to the public.
274 Section 6(a)(6) was added, effective March 1, 2012, to provide a method for the
275 court to prohibit public Internet access to an electronic case record when charges against a
276 defendant are dismissed or the defendant is acquitted. A request under Section 6(a)(1) is
277 required before the court can act to prohibit access under Section 6(a)(6).
278 Nothing in this rule or N.D.R.Ct. 3.4 precludes a clerk of court or the electronic
279 case management system from identifying non-confidential records that match a name
280 and date of birth or a name and social security number.
281 Joint Procedure Committee Minutes of April 24-25, 2014, page 27; April 28-29,
282 2011, pages 9-12; September 23-24, 2010, pages 16-20; September 24-25, 2009, pages 8-
283 9; May 21-22, 2009, pages 28-44; January 29-20, 2009, pages 3-4; September 25, 2008,
284 pages 2-6; January 24, 2008, pages 9-12; October 11-12, 2007, pages 28-30; April 26-27,
285 2007, page 31; September 22-23, 2005, pages 6-16; April 28-29, 2005, pages 22-25;
286 April 29-30, 2004, pages 6-13, January 29-30, 2004, pages 3-8; September 16-17, 2003,
287 pages 2-11; April 24-25, 2003, pages 6-12. Court Technology Committee Minutes of
288 June 18, 2004; March 19, 2004; September 12, 2003; Conference of Chief
289 Justices/Conference of State Court Administrators: Guidelines for Public Access to Court
291 Cross Reference: N.D.R.Ct. 3.4 (Privacy Protection for Filings Made With the