ND Supreme Court Training Center (1st Floor), Room 133
State Capitol, Bismarck
Members Present: Justice Daniel Crothers, Chair Michael Williams Susan Hoffer Hon. Stacy Louser (by phone) Kathryn Hinds Hon. Steven Marquart (by phone) Alvin Boucher Meredith Vukelic
Members Absent: Sen. Karen Krebsbach Aaron Birst Hon. Joshua Rustad Levi Andrist Barbara Hill
Others Present: Sally Holewa, State Court Administrator Larry Zubke, ITD Cammie Schock, ITD Jeff Stillwell, ITD William Phillips, ITD
Staff: Lindsey Nieuwsma
Chair Crothers called the meeting to order at 10:11 am and the attendees
Chair Crothers called attention to the minutes of the August 9, 2016 meeting
(meeting materials p. 1-5). Michael Williams moved to approve the minutes and
Meredith Vukelic seconded. The motion passed.
Chair Crothers gave an introduction of the committee objectives, a review of the
August meeting, and an explanation of the discussion topics on the agenda.
Sally Holewa provided a recap of the issues, background on the current retention
policy, and issues that have demonstrated the need for review of the policy as
Susan Hoffer asked whether the committee will be addressing the court records
only or administrative records as well. Ms. Holewa answered that both should be
addressed; currently the court has generic administrative record retention
schedules that follow the executive branch schedules, but those schedules do not
address day-to-day business records.
Small group general policy statement discussion and reporting
Chair Crothers moved the group into small-group discussions of goals and
priorities for the committee with respect to retention, destruction/disposition,
and public (or non-public) access. Chair Crothers directed the group to the JTC
Resource Bulletin: Developing an Electronic Records Preservation and Disposition
Plan in the meeting materials (p. 396-435).
The small groups discussed the broad issues and reported to the committee the
issues and questions that the members foresaw:
· Critical and non-critical documents
o Who determines what is critical
· Whether there should be distinctions between treatment of paper
and electronic documents
· Physical exhibits
· The value of different types of records
o Case files v. administrative records
· Whether destruction of records is automated or must be approved
by a “destruction supervisor”
· Utah’s court-focused approach
o Too aggressive
· How to balance costs and interests at stake
· Permissive v. mandatory retention/destruction of records
· Potential use of historical society and state archives as storage and
· Keeping records confidential/restricted access to sensitive
information Access and Retention of Electronic Court Records
Chair Crothers introduced committee member Susan Hoffer, Clerk of District
Court, Ward County. Ms. Hoffer recently conducted a study to assess public
opinion on access and retention of electronic court records. She presented the
research, survey questions, and results to the committee. (Meeting materials:
Access and Retention of Electronic Court Records, p. 146-268).
Michael Williams asked during the presentation whether there was current
capability with technology and staff to take old information, such as social
security numbers in files predating 2009, and allow for redaction and access. Ms.
Hoffer distinguished between confidential party information and information
contained within court documents like pleadings or briefs; party information
could be kept confidential. William Phillips stated, however, that there was no
accurate tool to redact sensitive information from within documents and that pre-2009 documents are not generally available online. Some pre-2009 case file
documents may be available online if the case has been reopened after 2009. The
pre-2009 paper documents are still being held in clerks’ offices.
There was discussion about whether there was a need to implement storage
methods and procedures for the pre-2009 paper documents as well as electronic
documents. Ms. Hoffer stated that her goal for the committee would be a review
of the paper document retention rule as well as building an electronic record
retention rule. Ms. Hoffer continued with her presentation and provided the group with
information about the retention portion of her study.
Report on Digital Record Assessments
The committee members returned from lunch break to hear a report on Digital
Record Assessment by Sally Holewa. Ms. Holewa gave an explanation of the
materials that she provided and a summary of the assessment conclusions. She
stated that her inquiry began with the technological side of record retention. She
defined digital continuity as the ability to maintain digital information in a way
that it will continue to be available, complete, and usable. On the positive side,
the Digital Continuity Checklist (meeting materials p. 269) showed that a user
could identify when, where, and by whom records are being created and where
they are stored. What record is being created is not always understandable.
With respect to case records, an area for improvement is in the digital audio
records. Because of the method of recording, the type and identity of hearings
being recorded is not clear. The naming convention is also an issue; court
reporters are all supposed to name records in the same way, but that is not
happening consistently which leads to difficulty in locating audio. There are also
issues with documents created in word processing; it is unclear what and whose
documents they are. >On the positive side, the court has put a lot of resources into good preservation,
e.g. backups and disaster recovery, and security of its records. With respect to
other areas of improvement in digital continuity, roles and responsibility for
administrative files, e.g. litigation holds, email correspondence, departing
employee records, need to be assigned. There is also uncertainty about metadata
being created and about the reliability of records. There are no methods in place
for validating the integrity of files.
Ms. Holewa moved on to the Digital Preservation Capability Self-Assessment
(meeting materials p. 270-272), which relates to how information will be accessed
in the future. On the positive side, the court is doing well with security and using
preservation file formats which are media neutral. There is also a good foundation
with current retention policy. The integrity of the documents was an
improvement area under this checklist, and the court does not have an archiving
policy in place.
Lastly, Ms. Holewa addressed the Records Management Program Review
(meeting materials p. 273-275), which relates to the creation or receipt of
records, the maintenance and use of records, and the disposition of records. The
current retention policy provides a good foundation, but it likely needs to be
reviewed and expanded. There are also some gaps in the record management
program. The position for the records coordinator position has been limited in
the past and is vacant right now. There has not been any active personnel training
on access and retention policies, and there are no policies governing things like
email, voicemails, and litigation holds. This is problematic in situations like open
records requests which may include emails or in a situation where a written
request or complaint is received via email instead of regular mail. Mr. Williams
asked how many open records requests are being made. Ms. Holewa said they
are typically party requests and she was aware of three situations in the past year.
She brought up another issue with the current retention policy. Currently,
retention is mandatory and disposition is discretionary. Arizona, which has a
discretionary disposition policy, was sued for differing practices between
counties. That approach should be considered and addressed in this committee’s
work. Chair Crothers also pointed out the problem with correcting errors in court
records and different practices by counties in addressing that issue.
Group Discussion of Electronic Records Retention and Access Issues
Chair Crothers moved the group to a discussion of the goals of the committee
going forward and a breakdown of the work to be done.
Chair Crothers introduced the issue of the definition of “court records.” The
group reviewed the current North Dakota definitions of court records contained
in Administrative Rules 19 and 41, which are different. The consensus was that
there should be one definition of court records for both the retention and access
policies. There was discussion about whether the court records definition should
encompass administrative records and the distinctions between court, case, and
administrative records. The consensus was that “court records” encompasses
both case and administrative records, but administrative records should be
identified separately from case records and different policies should apply to
each. There was also discussion about including electronic forms of records in the
definition and which courts are included under the policies.
Mr. Phillips pointed out the committee should consider that different access
mechanisms and procedures will need to be set forth for administrative records
and case records. There was discussion about audio records and including them
in case records and the increasing use of emails in court business. There has been
a distinction between audio recordings which are made by the court recorder and
recordings which are used as backup for a court stenographer, with the former
considered to be a court record and the latter as work product.
Alvin Boucher asked how the retention and access policies for court interplay with
the open records laws. Ms. Holewa explained that, according to attorney general
opinions, the open records laws do not apply to the judicial adjudicative activities,
but that other judicial activities, e.g. travel voucher payments, may be subject to
the open records laws.
Chair Crothers moved on to the topic of methods of records retention and
destruction. Judge Marquart asked, for retention purposes, whether the retained
case file would include the images and exhibits. Chair Crothers said that is exactly
one of the questions that need to be addressed. There was discussion about the
different components of the case file, which components should be retained, how
long to retain, and whether there should be a distinction between electronic and
paper records for retention and access purposes.
The group moved on to discussion about what should happen to the record at the
end of the retention period. Concerns that were voiced included the cost of
storing large amounts of information and the obsolescence of electronic record
forms. There was also general discussion about the problem of incorrect data in
retained records and the use of disclaimers and contracts which shift liability to
avoid issues. The group also discussed the consideration of the case type in
determining the retention period and access questions and whether the court
would work with the state archives for storage.
Ms. Holewa brought up the issue of whether parties have access to their own case
documents (not just the docket). The discussion centered on why the litigant
should have the expense of traveling to the courthouse or paying an attorney
(who has free remote access) to tell them what is in their own file. Mr. Phillips
explained that IT manually creates each attorney user account. The justification
for the accounts is that it takes less time and cost to create a remote access
account than it would for the clerks at the county courthouses to provide records
to each attorney, and as fee-paying members of the state bar and officers of the
court, attorneys should have access. There is a cost of $16 per month for each
person who has a remote access account. Mr. Phillips also pointed out that the
cost associated with transferring case file images over the internet would be very
high if remote access to all files was expanded to the public. Mr. Phillips talked
about a fee-per-view or cost for downloading documents option that could be
used, similar to PACER. Access for self-represented persons could be limited to
their cases alone, and the court could charge for that access. Chair Crothers
discussed a narrow request by a self-represented litigant to have access to his
files within his own case.
Chair Crothers reviewed the issues presented within the small group discussion in
the morning and invited questions or comments on anything that had not been
addressed in the afternoon discussion.
The meeting concluded with the assignment of members to subcommittees:
a.Subcommittee on definition of court records and access policy
i.Mike Williams (Chair) ii. Kathryn Hinds iii. Judge Rustad iv. Levi Andrist
b.Subcommittee to articulate retention policy
i.Judge Marquart (Chair) ii. Aaron Birst iii. Al Boucher iv. Barb Hill c.Subcommittee to articulate destruction policy i.Susan Hoffer (Chair) ii. Meredith Vukelic iii. Judge Louser iv. Sen. Krebsbach
The group addressed timeframes for future meetings and for subcommittees to
report back to the large group. The goal is to have an updated policy by
completed by September 2017 for submission to the Court for consideration. The
group will continue to meet every 6-8 weeks until June 2017.
With no further business, the meeting adjourned at 2:08 pm.