TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 5, 2016
RE: Rule 41, N.D. Sup. Ct. Admin. R., Access to Court Records
The committee discussed an amendment to Rule 41 proposed by Mark Friese at the last meeting. Since that time, two more proposals have been made to amend Rule 41. A rule draft reflecting these three proposals is attached.
Proposal to regulate remote access
Rule 41 provides for broad remote access to electronic records see the language beginning at line 77 of the rule draft. The language Mr. Zubke proposes, which begins on the second page of the Indiana document, is probably too detailed and specific to be added to Rule 41 itself. A proposed amendment to the rule, beginning at line 111 would instead allow the Court to adopt policies to regulate remote access. This is intended to give IT and the Court Technology Committee flexibility to develop specific measures to confront evolving data stripping tactics.
Proposal to protect identities of self help center patrons
Catie Palsgraf, the director the N.D. Legal Self Help Center, has requested that the committee consider amending Rule 41 to protect the identities of the self help center's patrons. In a memo, attached, Ms. Palsgraf says that the center collects certain data on patrons, including name, address, telephone number, and the topic of the query.
Ms. Palsgraf points out that the center is part of the law library and, therefore, the patron information it collects may be protected by N.D.C.C. 40-38-12, copy attached, which protects person information of library patrons. This statute, however, is in the section of the code on municipal governments and N.D.C.C. 40-38-01, the first section of the chapter in which N.D.C.C. 40-38-12 is contained, discusses establishment of libraries by cities and counties. Because it is arguable that the statute does not apply to the self help center, Ms. Palsgraf suggests that language similar to the statute's could be added to Rule 41. Proposed amendments to Rule 41 consistent with Ms. Palsgraf's suggestion begin at line 199 of the attached Rule 41 proposal.
Proposal to limit access to records when no probable cause found for complaint
At the last meeting, the committee discussed Mark Friese's proposal that Rule 41 be amended to allow sealing of the record if a complaint is filed and the magistrate later finds no probable cause. Staff prepared a proposed amendment that would allow a motion for prohibiting Internet access to this type of record under Section 6 (a)(6) the proposed amendment begins at line 236.
Staff sent this proposal to Mr. Friese for comment and he replied in an email, attached, that it would be preferable to have the record sealed and the online entry removed completely, which is similar to what happens in a completed deferred sentence case. Deferred sentence records are somewhat unique as they are protected under statute, N.D.C.C. 12.1-32-07.2, copy attached.
In order to provide the level of protection requested by Mr. Friese by rule for the records of cases in which a complaint is filed and the magistrate later finds no probable cause, it would be necessary to add these matters to Section 5(b) of the rule. The committee may wish to discuss whether confidentiality of this record type is important enough to merit this level of protection.