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