Members Present: Justice Daniel Crothers, Chair Michael Williams Susan Hoffer Hon. Stacy Louser Kathryn Hinds Hon. Steven Marquart Aaron Birst Hon. Joshua Rustad Levi Andrist Barbara Hill
Others Present: Sally Holewa Larry Zubke, ITD William Phillips, ITD
Members Absent: Sen. Karen Krebsbach Alvin Boucher Rep. Gail Mooney Meredith Vukelic
Staff: Lindsey Nieuwsma
Chair Crothers called the meeting to order at 11:05 am and staff conducted roll call of the
committee members and others present.
Chair Crothers called attention to the minutes of the September 16, 2016 meeting (meeting
materials p. 1-7). Sally Holewa pointed out the need for a clarification on page 3 of the minutes
related to the discussion of pre-2009 documents. She clarified that pre-2009 documents are not
generally available online, but some pre-2009 case file documents may be available online if
the case has been reopened after 2009. Michael Williams moved to approve the minutes as
amended and Aaron Birst seconded. The motion passed.
Court Records Definitions and Access Policy Subcommittee
Chair Crothers introduced the topic of subcommittee progress reports and turned it over to the
subcommittee spokespersons. Michael Williams, subcommittee chair, reported on behalf of the
subcommittee on court records definitions and access policy. Mr. Williams summarized the
Recommended General Policy and Definitions on Access to Court Records report (meeting
materials p. 8-9). There was discussion about the types of records that would be included, e.g.
audio recordings and annotations by a court reporter. There was a consensus that the work of
the subcommittee was headed in the right direction and Chair Crothers commended the
definition and access subcommittee, and all of the subcommittees, on their dedication and
hard work thus far. He directed any members with questions or comments related to court
records definitions and access policy to contact Mr. Williams.
Sally Holewa offered comments regarding the definitions and access subcommittee report; she
liked that the subcommittee had broken down the definition of “public” to recognize that there
are other types of groups, such as the agencies that assist the court in providing court services,
which are “nonpublic.” One of the shortcomings of the current rule is that it does not separate
out and define these types of groups, even though they currently receive a different type of
access than the general public. She also commented that “administrative records” was well-defined and encompassed records held by all levels of the court. She questioned the use of the
word “propriety” in the general policy statement of the report and requested clarification and
explanation for its use.
Records Retention Policy Subcommittee Chair Crothers moved on to the subcommittee on record retention policy. Subcommittee chair
Steven Marquart provided a summary of the subcommittee report (meeting materials p. 10).
The subcommittee consists of Judge Marquart, Aaron Birst, Al Boucher and Barb Hill. The
subcommittee came to a consensus that current N.D. Sup. Ct. Admin. Rule 19 should be used as
a reference to develop a retention policy for electronic records. The subcommittee discussed
potential amendments to Rule 19 to shorten or lengthen the retention period for certain types
of records. Judge Marquart stated that he would like input from the full committee on whether
there should be a distinction between electronic and paper records for purposes of
determining the retention period. Larry Zubke stated that the cost of retaining too many
records becomes a problem regardless of the medium; keeping records forever is not practical.
There must be a balance and determination of what is usable, for how long is it usable, and
whether it is cost-effective to keep the records. Chair Crothers asked whether the resources
available to the subcommittee thus far were sufficient to guide the subcommittee. Judge
Marquart stated that Rule 19 provided a good framework for both an electronic and paper
record retention schedule.
Chair Crothers invited comments from those who felt that electronic record retention should
be addressed separately from paper record retention. Barb Hill pointed out that the current
Rule 19 specifically states the disposition method, such as destruction by landfill or transfer to
state archives. In a similar manner, the new policy will need to specifically address how
electronic records will be disposed.
Susan Hoffer commented that the destruction subcommittee was also grappling with the issue
of whether electronic and paper records should be treated differently. The destruction
subcommittee also did not find any justification for treating a paper record any differently than
an electronic record. Ms. Hoffer posed the question of whether outside agency time periods
should be considered when drafting the court record retention period; for example, the
attorney general requirement for a sex offender registration far exceeds the court record
Mr. Birst asked how an automatic purge program would identify the correct case type to trigger
a destruction action. Mr. Zubke indicated that the current system and code table would not
allow for automatic identification and purge; it would have to be a manual process. There was
discussion about whether the process should be automatic or should be subject to a manual
review prior to destruction. Mr. Zubke indicated that the qualifying cases could be added to a
queue to be manually reviewed by a clerk or other individual and designated for destruction or
disposition. That process will likely be covered by the work of the destruction/disposition
Ms. Holewa commented that she does not see an issue with treating electronic and paper
records the same, but consideration should be given to the types of documents within each
case file, not just the case file as a whole, and the use of the document over time. Judge
Marquart posed the question of what destruction means and what files or parts of files that
would cover. The consensus was that question was best addressed by the destruction policy
Judge Marquart indicated that the discussion thus far clarified that the future work of the
retention subcommittee would be reviewing and amending the retention policy in Rule 19.
Destruction/Disposition Policy Subcommittee
Chair Crothers moved on to the report of the subcommittee on destruction/disposition. Susan
Hoffer, subcommittee chair, summarized the subcommittee’s approach and work on the issue
of destruction/disposition policy. The subcommittee used the JTC Resource Bulletin talking
points to get the subcommittee members’ perspectives on destruction issues. The
subcommittee report in the meeting materials (p. 11-19) highlights these talking points and the
thoughts, comments, and concerns of the subcommittee members. Ms. Hoffer invited
questions and comments on the subcommittee’s report from the full committee. Chair Crothers directed members to the first page of the report and invited comments and
questions on the issue of whether destruction should be automatic. Judge Marquart agreed
with the subcommittee conclusion that destruction should not be automatic; there should be a
manual review process in place. Chair Crothers asked how that would affect the workload. Ms.
Hoffer stated that a clerk currently manually reviews each paper record, so it would not
increase the current workload of the clerks to review electronic records. She recommends that
the current review process continue. The current process uses a reminder in the court record to
notify the clerks when a record is set for review, and then a manual review is done to ensure
that the file meets the destruction guidelines. For electronic records, the process could be
expanded to include an “automatic trigger” for electronic destruction of the record after the
review is complete. Mr. Zubke indicated that a queue and automatic trigger process would be
doable under Odyssey.
Kathryn Hinds asked whether there were any categories of information or data that could be
destroyed without a manual review, such as metadata, or certain types of cases. Ms. Holewa
indicated that traffic records are currently purged without manual review, and other potential
exceptions to the manual review process could be carved out, such as financial records. She
also pointed out that the destruction policy is currently permissive; the committee should
address whether the destruction policy should be made mandatory. Ms. Hill also indicated that
dismissed cases could be considered for an exception to manual review.
There was discussion about the issue of what types of documents and data elements to
maintain or destroy. The destruction subcommittee discussed the issue and the costs of
retaining all parts of the case file. Mr. Zubke pointed out the difficulty of maintaining electronic
records with changing technology and obsolescence issues. He brought up the option of using
Cloud storage, which is typically cheaper.
Ms. Hoffer suggested that the retention subcommittee also look at the issue from the
perspective of what documents should be retained. Judge Marquart agreed that both the
retention and destruction subcommittees should discuss the issue of what types of documents
and data elements should be retained or destroyed.
Ms. Holewa added that an index of filed court records has been used; she suggested that the
committee may want to designate case file types that require an index, such as a divorce or
probate, and those that do not, such as an eviction or an expired protection order.
Levi Andrist asked Mr. Zubke for background information about the option of using Cloud
Ms. Holewa brought up the issue of “soft deletion” of cases. Ms. Hoffer clarified that the
thought process of the subcommittee was to have a secondary database, not the active
mainstream database, to house inactive files. This would allow them to be available to the
court if needed, but not stored on the active, live database.
The group discussed the overlap between the destruction and access subcommittees on the
issue of how long a court system should publish a court record online. The group discussed the
scope of the access and destruction subcommittees’ charges and whether they covered both
administrative records and case files.
Ms. Hoffer reported that the subcommittee addressed new territory with respect to the issue
of designating historically significant cases. The subcommittee suggested that a process or
exceptions list be developed to designate cases as historically significant and specially preserve
the cases. The process should be designed to allow an opportunity for multiple parties to
request that a case be designated as historically significant rather than an obligation imposed
on any party to recognize and designate cases.
Chair Crothers thanked the subcommittees for their work and invited further comments and
questions. The committee agreed that because of the good progress, the next scheduled
meeting for November 18, 2016 could likely be cancelled.
Having no further business, the meeting adjourned at 12:06 pm.
Meeting Materials: 1. September 16, 2016 meeting minutes (meeting materials p. 1-7) 2. “Recommended General Policy and Definitions on Access to Court Records ,” report of
the subcommittee on definition of court records and access policy (meeting materials p.
8-9) 3. Records Retention Policy Subcommittee Report (meeting materials p. 10) 4. Report of the subcommittee to articulate destruction/disposition policy (meeting
materials p. 11-19)