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
3 public access to court records. Every member of the public will have access to
4 court records as 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
11 management system created by or prepared by court personnel that is related to a
12 judicial proceeding; and
13 (3) information maintained by court personnel pertaining to the
14 administration of the court or clerk of court office and not associated with any
15 particular case.
16 (b) "Court record" does not include:
17 (1) other records maintained by the public official who also serves as clerk
18 of court;
19 (2) information gathered, maintained or stored by a governmental agency or
20 other entity to which the court has access but which is not part of the court record
21 as defined in this rule; and
22 (3) a record that has been disposed of under court records management
24 (c) "Public access" means that the public may inspect and obtain a copy of
25 the information in a court record.
26 (d) "Remote access" means the ability to electronically search, inspect, or
27 copy information in a court record without the need to physically visit the court
28 facility where the court record is maintained.
29 (e) "Bulk distribution" means the distribution of all, or a significant subset,
30 of the information in court records, as is and without modification or compilation.
31 (f) "Compiled information" means information that is derived from the
32 selection, aggregation or reformulation by the court of some of the information
33 from more than one individual court record.
34 (g) "Electronic form" means information in a court record that exists as:
35 (1) electronic representations of text or graphic documents;
36 (2) an electronic image, including a video image, of a document, exhibit or
37 other thing;
38 (3) data in the fields or files of an electronic database; or
39 (4) an audio or video recording, analog or digital, of an event or notes in an
40 electronic file from which a transcript of an event can be prepared.
41 Section 3. General Access Rule.
42 (a) Public Access to Court Records.
43 (1) Court records are accessible to the public except as prohibited by this
45 (2) There must be a publicly accessible indication of the existence of
46 information in a court record to which access has been prohibited, which
47 indication may not disclose the nature of the information protected.
48 (3) A court may not adopt a more restrictive access policy or otherwise
49 restrict access beyond that provided for in this rule, nor provide greater access than
50 that provided for in this rule.
51 (b) When Court Records May Be Accessed.
52 (1) Court records in a court facility must be available for public access
53 during normal business hours. Court records in electronic form to which the court
54 allows remote access will be available for access subject to technical systems
56 (2) Upon receiving a request for access to a court record, the clerk of court
57 must respond as promptly as practical. If a request cannot be granted promptly, or
58 at all, an explanation must be given to the requestor as soon as possible. The
59 requestor has a right to at least the following information: the nature of any
60 problem preventing access and the specific statute, federal law, or court or
61 administrative rule that is the basis of the denial. The explanation must be in
62 writing if desired by the requestor.
63 (3) The clerk of court is not required to search within a court record for
64 specific information that may be sought by a requestor.
65 (c) Access to Court Records Filed Before March 1, 2009. Court records
66 filed before the adoption of N.D.R.Ct. 3.4 may contain protected information listed
67 under N.D.R.Ct. 3.4(a). This rule does not require the review and redaction of
68 protected information from a court record that was filed before the adoption of
69 N.D.R.Ct. 3.4 on March 1, 2009.
70 (d) Fees for Access. The court may charge a fee for access to court records
71 in electronic form, for remote access, for bulk distribution or for compiled
72 information. To the extent that public access to information is provided exclusively
73 through a vendor, the court will ensure that any fee imposed by the vendor for the
74 cost of providing access is reasonable.
75 Section 4. Methods of Access to Court Records.
76 (a) Access to Court Records at Court Facility.
77 (1) Request for Access. Any person desiring to inspect, examine, or copy a
78 court record must make an oral or written request to the clerk of court. If the
79 request is oral, the clerk may require a written request if the clerk determines that
80 the disclosure of the record is questionable or the request is so involved or lengthy
81 as to need further definition. The request must clearly identify the record requested
82 so that the clerk can locate the record without doing extensive research.
83 Continuing requests for a document not yet in existence may not be considered.
84 (2) Response to Request. The clerk of court is not required to allow access
85 to more than ten files per day per requestor but may do so in the exercise of the
86 clerk's discretion if the access will not disrupt the clerk's primary function. If the
87 request for access and inspection is granted, the clerk may set reasonable time and
88 manner of inspection requirements that ensure timely access while protecting the
89 integrity of the records and preserving the affected office from undue disruption.
90 The inspection area must be within full view of court personnel whenever possible.
91 The person inspecting the records may not leave the court facility until the records
92 are returned and examined for completeness.
93 (3) Response by Court. If a clerk of court determines there is a question
94 about whether a record may be disclosed, or if a written request is made under
95 Section 6(b) for a ruling by the court after the clerk denies or grants an access
96 request, the clerk must refer the request to the court for determination. The court
97 must use the standards listed in Section 6 to determine whether to grant or deny the
98 access request.
99 (b) Remote Access to Court Records.
100 (1) In General. The following information in court records must be made
101 remotely accessible to the public if it exists in electronic form, unless public access
102 is restricted under this rule:
1 A) litigant/party indexes to cases filed with the
2 B) listings of new case filings, including the names
of the parties;
3 C) register of actions showing what documents have
been filed in a case;
4 D) calendars or dockets of court proceedings,
including the case number
107 and caption, date and time of hearing, and location of hearing; and
5 E) reports specifically developed for electronic
transfer approved by the
109 state court administrator and reports generated in the normal course of business, if
110 the report does not contain information that is excluded from public access under
111 Section 5 or 6.
112 (2) Access Regulation.
113 (A) The Supreme Court may adopt and implement policies to regulate
114 remote access to court records. These policies must be posted publically on the
115 Court's website.
116 (B) A record of a criminal case for which there is no conviction may not be
117 remotely accessed through a name search except through the secure public access
119 (c) Requests for Bulk Distribution of Court Records.
120 (1) Bulk distribution of information in the court record is permitted for
121 court records that are publicly accessible under Section 3(a).
122 (2) A request for bulk distribution of information not publicly accessible
123 can be made to the court for scholarly, journalistic, political, governmental,
124 research, evaluation or statistical purposes when the identification of specific
125 individuals is ancillary to the purpose of the inquiry. Prior to the release of
126 information under this subsection the requestor must comply with the provisions of
127 Section 6.
128 (3) A court may allow a party to a bulk distribution agreement access to
129 birth date, street address, and social security number information if the party
130 certifies that it will use the data for legitimate purposes as permitted by law.
131 (d) Access to Compiled Information From Court Records.
132 (1) Any member of the public may request compiled information that
133 consists solely of information that is publicly accessible and that is not already in
134 an existing report. The court may compile and provide the information if it
135 determines, in its discretion, that providing the information meets criteria
136 established by the court, that the resources are available to compile the information
137 and that it is an appropriate use of public resources. The court may delegate to its
138 staff or the clerk of court the authority to make the initial determination to provide
139 compiled information.
140 (2) Requesting compiled restricted information.
141 (A) Compiled information that includes information to which public access
142 has been restricted may be requested by any member of the public only for
143 scholarly, journalistic, political, governmental, research, evaluation, or statistical
145 (B) The request must:
146 (i) identify what information is sought,
147 (ii) describe the purpose for requesting the information and explain how the
148 information will benefit the public interest or public education, and
149 (iii) explain provisions for the secure protection of any information
150 requested to which public access is restricted or prohibited.
151 (C) The court may grant the request and compile the information if it
152 determines that doing so meets criteria established by the court and is consistent
153 with the purposes of this rule, the resources are available to compile the
154 information, and that it is an appropriate use of public resources.
155 (D) If the request is granted, the court may require the requestor to sign a
156 declaration that:
157 (i) the data will not be sold or otherwise distributed, directly or indirectly, to
158 third parties, except for journalistic purposes,
159 (ii) the information will not be used directly or indirectly to sell a product or
160 service to an individual or the general public, except for journalistic purposes, and
161 (iii) there will be no copying or duplication of information or data provided
162 other than for the stated scholarly, journalistic, political, governmental, research,
163 evaluation, or statistical purpose.
164 The court may make such additional orders as may be needed to protect
165 information to which access has been restricted or prohibited.
166 Section 5. Court Records Excluded From Public Access.
167 The following information in a court record is not accessible to the public:
168 (a) information that is not accessible to the public under federal law;
169 (b) information that is not accessible to the public under state law, court
170 rule, case law or court order, including:
171 (1) affidavits or sworn testimony and records of proceedings in support of
172 the issuance of a search or arrest warrant pending the return of the warrant;
173 (2) information in a complaint and associated arrest or search warrant to the
174 extent confidentiality is ordered by the court under N.D.C.C. §§ 29-05-32 or
176 (3) documents filed with the court for in-camera examination pending
178 (4) case information and documents in Child Relinquishment to Identified
179 Adoptive Parent cases brought under N.D.C.C. ch. 14-15.1;
180 (5) domestic violence protection order files and disorderly conduct
181 restraining order files when the restraining order is sought due to domestic
182 violence, except for orders of the court;
183 (6) documents in domestic violence protection order and disorderly conduct
184 restraining order cases in which the initial petition was dismissed summarily by the
185 court without a contested hearing;
186 (7) names of qualified or summoned jurors and contents of jury
187 qualification forms if disclosure is prohibited or restricted by order of the court;
188 (8) records of voir dire of jurors, unless disclosure is permitted by court
189 order or rule;
190 (9) records of deferred impositions of sentences resulting in dismissal;
192 (10) records of a case in which the magistrate finds no probable cause for
193 the issuance of a complaint;
(10) (11) unless exempted from redaction by
N.D.R.Ct. 3.4(c), protected
196 (A) except for the last four digits, social security numbers, taxpayer
197 identification numbers, and financial account numbers,
198 (B) except for the year, birth dates, and
199 (C) except for the initials, the name of an individual known to be a minor,
200 unless the minor is a party, and there is no statute, regulation, or rule mandating
(11) (12) judge and court personnel work material,
203 calendars, communications from law clerks, bench memoranda, notes, work in
204 progress, draft documents and non-finalized documents;
(12) (13) party, witness and crime victim contact
information gathered and
206 recorded by the court for administrative purposes, including telephone numbers
207 and e-mail, street and postal addresses
208 (14) the name of a patron of the North Dakota Legal Self Help Center or
209 information sufficient to identify a patron or the subject about which a patron
210 requested information.
211 (c) This rule does not preclude access to court records by the following
212 persons in the following situations:
213 (1) federal, state, and local officials, or their agents, examining a court
214 record in the exercise of their official duties and
215 (2) parties to an action and their attorneys examining the court file of the
216 action, unless restricted by order of the court, but parties and attorneys may not
217 access judge and court personnel work material in the court file.
218 (d) A member of the public may request the court to allow access to
219 information excluded under Section 5 as provided in Section 6.
220 Section 6. Requests to Prohibit Public Access to Information in Court
221 Records or to Obtain Access to Restricted Information.
222 (a) Request to Prohibit Access.
223 (1) A request to the court to prohibit public access to information in a court
224 record may be made by any party to a case, by the individual about whom
225 information is present in the court record, or on the court's own motion on notice
226 as provided in Section 6(c).
227 (2) The court must decide whether there are sufficient grounds to overcome
228 the presumption of openness of court records and prohibit access according to
229 applicable constitutional, statutory and case law.
230 (3) In deciding whether to prohibit access the court must consider that the
231 presumption of openness may only be overcome by an overriding interest. The
232 court must articulate this interest along with specific findings sufficient to allow a
233 reviewing court to determine whether the closure order was properly entered.
234 (4) The closure of the records must be no broader than necessary to protect
235 the articulated interest. The court must consider reasonable alternatives to closure,
236 such as redaction or partial closure, and the court must make findings adequate to
237 support the closure. The court may not deny access only on the ground that the
238 record contains confidential or closed information.
239 (5) In restricting access the court must use the least restrictive means that
240 will achieve the purposes of this rule and the needs of the requestor.
241 (6) If the court concludes, after conducting the balancing analysis and
242 making findings as required by paragraphs (1) through (5), that the interest of
243 justice will be served, it may prohibit public Internet access to an individual
244 defendant's electronic court record in a criminal case:
245 (A) if the charges against the defendant are dismissed; or
246 (B) if the defendant is acquitted.
247 If the court grants a request to prohibit public Internet access to an
248 electronic court record in a criminal case, the search result for the record must
249 display the words "Internet Access Prohibited under N.D.Sup.Ct. Admin.R 41."
250 (b) Request to Obtain Access.
251 (1) A request to obtain access to information in a court record to which
252 access is prohibited under Section 4(a), 5 or 6(a) may be made to the court by any
253 member of the public or on the court's own motion on notice as provided in
254 Section 6(c).
255 (2) In deciding whether to allow access, the court must consider whether
256 there are sufficient grounds to overcome the presumption of openness of court
257 records and continue to prohibit access under applicable constitutional, statutory
258 and case law. In deciding this the court must consider the standards outlined in
259 Section 6(a).
260 (c) Form of Request.
261 (1) The request must be made by a written motion to the court.
262 (2) The requestor
shall must give notice to all parties
in the case.
263 (3) The court may require notice to be given by the requestor or another
264 party to any individuals or entities identified in the information that is the subject
265 of the request. When the request is for access to information to which access was
266 previously prohibited under Section 6(a), the court must provide notice to the
267 individual or entity that requested that access be prohibited.
268 Section 7. Obligations Of Vendors Providing Information Technology
269 Support To A Court To Maintain Court Records.
270 (a) If the court contracts with a vendor to provide information technology
271 support to gather, store, or make accessible court records, the contract will require
272 the vendor to comply with the intent and provisions of this rule. For purposes of
273 this section, "vendor" includes a state, county or local governmental agency that
274 provides information technology services to a court.
275 (b) By contract the vendor will be required to notify the court of any
276 requests for compiled information or bulk distribution of information, including
277 the vendor's requests for such information for its own use.
278 EXPLANATORY NOTE
279 Adopted on an emergency basis effective October 1, 1996; Amended and
280 adopted effective November 12, 1997; March 1, 2001; July 1, 2006; March 1,
281 2009; March 15, 2009; March 1, 2010; March 1, 2012; March 1, 2015; March 1,
282 2016;____________. Appendix amended effective August 1, 2001, to reflect the
283 name change of State Bar Board to State Board of Law Examiners.
284 Section 3(b)(3) was added, effective March 1, 2016, to clarify that the clerk
285 of court is not required to search within a court record for specific information that
286 may be sought by a requestor.
287 Section 3(c) was adopted, effective March 1, 2010, to state that protected
288 information may be contained in court records filed before the adoption of
289 N.D.R.Ct. 3.4.
290 Section 4(b) was amended, effective_______________, to allow the
291 Supreme Court to enact and implement policies to regulate remote access to court
292 records and to limit remote access by name search to pre-conviction records in
293 criminal cases.
294 Section 4(c) was amended, effective March 15, 2009, to allow parties who
295 enter into bulk distribution agreements with the courts to have access to birth date,
296 street address, and social security number information upon certifying compliance
297 with laws governing the security of protected information. Such laws include the
298 Federal Fair Credit Reporting Act, the Gramm Leach Bliley Act, the USA Patriot
299 Act and the Driver's Privacy Protection Act.
300 Section 5(b)(6) was amended, effective March 1, 2015, to clarify that the
301 restriction on public access to documents in domestic violence protection order
302 and disorderly conduct restraining order cases under this paragraph is limited to
303 cases that were dismissed summarily.
304 Section 5(b)(8) was amended, effective March 15, 2009, to list types of
305 protected information open to the public. The term "financial-account number" in
306 Section 5(b)(8) includes any credit, debit or electronic fund transfer card number,
307 and any other financial account number.
308 Section 5(b)(8) was amended, effective March 1, 2010, to incorporate the
309 exemptions from redaction contained in N.D.R.Ct. 3.4(b). A document containing
310 protected information that is exempt from redaction under N.D.R.Ct. 3.4(b) is
311 accessible to the public.
312 Section 5(b)(10) was added, effective_________, to exclude cases in which
313 a magistrate finds no probable cause for the issuance of a complaint from public
315 Section 5(b)(12) was added, effective March 1, 2016, to exclude party,
316 witness and crime victim contact information gathered and recorded by the court
317 for administrative purposes from public access.
318 Section 5(b)(13) was added, effective_________, to exclude information
319 about patrons of the North Dakota Legal Self Help Center from public access.
320 Section 6(a)(6) was added, effective March 1, 2012, to provide a method for
321 the court to prohibit public Internet access to an electronic case record when
322 charges against a defendant are dismissed or the defendant is acquitted. A request
323 under Section 6(a)(1) is required before the court can act to prohibit access under
324 Section 6(a)(6).
325 Nothing in this rule or N.D.R.Ct. 3.4 precludes a clerk of court or the
326 electronic case management system from identifying non-confidential records that
327 match a name and date of birth or a name and social security number.
328 Joint Procedure Committee Minutes of ________________; January 28-29,
329 2016, pages 2-7; September 24-25, 2015, pages 15-16, 20-21; April 23-24, 2015,
330 pages 8-10; April 24-25, 2014, page 27; April 28-29, 2011, pages 9-12; September
331 23-24, 2010, pages 16-20; September 24-25, 2009, pages 8-9; May 21-22, 2009,
332 pages 28-44; January 29-20, 2009, pages 3-4; September 25, 2008, pages 2-6;
333 January 24, 2008, pages 9-12; October 11-12, 2007, pages 28-30; April 26-27,
334 2007, page 31; September 22-23, 2005, pages 6-16; April 28-29, 2005, pages
335 22-25; April 29-30, 2004, pages 6-13, January 29-30, 2004, pages 3-8; September
336 16-17, 2003, pages 2-11; April 24-25, 2003, pages 6-12. Court Technology
337 Committee Minutes of June 18, 2004; March 19, 2004; September 12, 2003;
338 Conference of Chief Justices/Conference of State Court Administrators:
339 Guidelines for Public Access to Court Records.
340 Cross Reference: N.D.R.Ct. 3.4 (Privacy Protection for Filings Made With
341 the Court).