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.
Information in the court record is Court records are
accessible to the
44 public except as 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
court record, the
57 clerk of court must respond as promptly as practical. If a request cannot be granted
58 promptly, or at all, an explanation must be given to the requestor as soon as
59 possible. The requestor has a right to at least the following information: the nature
60 of any 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. The following information in court
100 records must be made remotely accessible to the public if it exists in electronic
101 form, unless public access is restricted under this rule:
102 (1) litigant/party indexes to cases filed with the court;
103 (2) listings of new case filings, including the names of the parties;
104 (3) register of actions showing what documents have been filed in a case;
105 (4) calendars or dockets of court proceedings, including the case number
106 and caption, date and time of hearing, and location of hearing; and
107 (5) reports specifically developed for electronic transfer approved by the
108 state court administrator and reports generated in the normal course of business, if
109 the report does not contain information that is excluded from public access under
110 Section 5 or 6.
111 (c) Requests for Bulk Distribution of Court Records.
112 (1) Bulk distribution of information in the court record is permitted for
113 court records that are publicly accessible under Section 3(a).
114 (2) A request for bulk distribution of information not publicly accessible
115 can be made to the court for scholarly, journalistic, political, governmental,
116 research, evaluation or statistical purposes when the identification of specific
117 individuals is ancillary to the purpose of the inquiry. Prior to the release of
118 information under this subsection the requestor must comply with the provisions of
119 Section 6.
120 (3) A court may allow a party to a bulk distribution agreement access to
121 birth date, street address, and social security number information if the party
122 certifies that it will use the data for legitimate purposes as permitted by law.
123 (d) Access to Compiled Information From Court Records.
124 (1) Any member of the public may request compiled information that
125 consists solely of information that is publicly accessible and that is not already in
126 an existing report. The court may compile and provide the information if it
127 determines, in its discretion, that providing the information meets criteria
128 established by the court, that the resources are available to compile the information
129 and that it is an appropriate use of public resources. The court may delegate to its
130 staff or the clerk of court the authority to make the initial determination to provide
131 compiled information.
132 (2) Requesting compiled restricted information.
133 (A) Compiled information that includes information to which public access
134 has been restricted may be requested by any member of the public only for
135 scholarly, journalistic, political, governmental, research, evaluation, or statistical
137 (B) The request must:
138 (i) identify what information is sought,
139 (ii) describe the purpose for requesting the information and explain how the
140 information will benefit the public interest or public education, and
141 (iii) explain provisions for the secure protection of any information
142 requested to which public access is restricted or prohibited.
143 (C) The court may grant the request and compile the information if it
144 determines that doing so meets criteria established by the court and is consistent
145 with the purposes of this rule, the resources are available to compile the
146 information, and that it is an appropriate use of public resources.
147 (D) If the request is granted, the court may require the requestor to sign a
148 declaration that:
149 (i) the data will not be sold or otherwise distributed, directly or indirectly, to
150 third parties, except for journalistic purposes,
151 (ii) the information will not be used directly or indirectly to sell a product or
152 service to an individual or the general public, except for journalistic purposes, and
153 (iii) there will be no copying or duplication of information or data provided
154 other than for the stated scholarly, journalistic, political, governmental, research,
155 evaluation, or statistical purpose.
156 The court may make such additional orders as may be needed to protect
157 information to which access has been restricted or prohibited.
158 Section 5. Court Records Excluded From Public Access.
159 The following information in a court record is not accessible to the public:
160 (a) information that is not accessible to the public under federal law;
161 (b) information that is not accessible to the public under state law, court
162 rule, case law or court order, including:
163 (1) affidavits or sworn testimony and records of proceedings in support of
164 the issuance of a search or arrest warrant pending the return of the warrant;
165 (2) information in a complaint and associated arrest or search warrant to the
166 extent confidentiality is ordered by the court under N.D.C.C. §§ 29-05-32 or 29-
168 (3) documents filed with the court for in-camera examination pending
170 (4) case information and documents in Child Relinquishment to Identified
171 Adoptive Parent cases brought under N.D.C.C. ch. 14-15.1;
172 (5) domestic violence protection order files and disorderly conduct
173 restraining order files when the restraining order is sought due to domestic
174 violence, except for orders of the court;
175 (6) documents in domestic violence protection order and disorderly conduct
176 restraining order cases in which the initial petition was dismissed summarily by the
177 court without a contested hearing;
178 (7) names of qualified or summoned jurors and contents of jury
179 qualification forms if disclosure is prohibited or restricted by order of the court;
180 (8) records of voir dire of jurors, unless disclosure is permitted by court
181 order or rule;
182 (9) records of deferred impositions of sentences resulting in dismissal;
183 (10) unless exempted from redaction by N.D.R.Ct. 3.4(c), protected
185 (A) except for the last four digits, social security numbers, taxpayer
186 identification numbers, and financial account numbers,
187 (B) except for the year, birth dates, and
188 (C) except for the initials, the name of an individual known to be a minor, unless
189 the minor is a party, and there is no statute, regulation, or rule mandating
191 (11) judge and court personnel work material, including personal calendars,
192 communications from law clerks, bench memoranda, notes, work in progress, draft
193 documents and non-finalized documents;
194 (12) party, witness and crime victim contact information gathered and
195 recorded by the court for administrative purposes, including telephone numbers
196 and e-mail, street and postal addresses.
197 (c) This rule does not preclude access to court records by the following
198 persons in the following situations:
199 (1) federal, state, and local officials, or their agents, examining a court
200 record in the exercise of their official duties and powers.
201 (2) parties to an action and their attorneys examining the court file of the
202 action, unless restricted by order of the court, but parties and attorneys may not
203 access judge and court personnel work material in the court file.
204 (d) A member of the public may request the court to allow access to
205 information excluded under Section 5 as provided in Section 6.
206 Section 6. Requests to Prohibit Public Access to Information in Court
207 Records or to Obtain Access to Restricted Information.
208 (a) Request to Prohibit Access.
209 (1) A request to the court to prohibit public access to information in a court record
210 may be made by any party to a case, by the individual about whom information is
211 present in the court record, or on the court's own motion on notice as provided in
212 Section 6(c).
213 (2) The court must decide whether there are sufficient grounds to overcome
214 the presumption of openness of court records and prohibit access according to
215 applicable constitutional, statutory and case law.
216 (3) In deciding whether to prohibit access the court must consider that the
217 presumption of openness may only be overcome by an overriding interest. The
218 court must articulate this interest along with specific findings sufficient to allow a
219 reviewing court to determine whether the closure order was properly entered.
220 (4) The closure of the records must be no broader than necessary to protect
221 the articulated interest. The court must consider reasonable alternatives to closure,
222 such as redaction or partial closure, and the court must make findings adequate to
223 support the closure. The court may not deny access only on the ground that the
224 record contains confidential or closed information.
225 (5) In restricting access the court must use the least restrictive means that
226 will achieve the purposes of this rule and the needs of the requestor.
227 (6) If the court concludes, after conducting the balancing analysis and
228 making findings as required by paragraphs (1) through (5), that the interest of
229 justice will be served, it may prohibit public Internet access to an individual
230 defendant's electronic court record in a criminal case:
231 (A) if the charges against the defendant are dismissed; or
232 (B) if the defendant is acquitted. If the court grants a request to prohibit
233 public Internet access to an electronic court record in a criminal case, the search
234 result for the record must display the words "Internet Access Prohibited under
235 N.D.Sup.Ct. Admin.R 41."
236 (b) Request to Obtain Access.
237 (1) A request to obtain access to information in a court record to which
238 access is prohibited under Section 4(a), 5 or 6(a) may be made to the court by any
239 member of the public or on the court's own motion on notice as provided in
240 Section 6(c).
241 (2) In deciding whether to allow access, the court must consider whether
242 there are sufficient grounds to overcome the presumption of openness of court
243 records and continue to prohibit access under applicable constitutional, statutory
244 and case law. In deciding this the court must consider the standards outlined in
245 Section 6(a).
246 (c) Form of Request.
247 (1) The request must be made by a written motion to the court.
248 (2) The requestor shall give notice to all parties in the case.
249 (3) The court may require notice to be given by the requestor or another
250 party to any individuals or entities identified in the information that is the subject
251 of the request. When the request is for access to information to which access was
252 previously prohibited under Section 6(a), the court must provide notice to the
253 individual or entity that requested that access be prohibited.
254 Section 7. Obligations Of Vendors Providing Information Technology
255 Support To A Court To Maintain Court Records.
256 (a) If the court contracts with a vendor to provide information technology
257 support to gather, store, or make accessible court records, the contract will require
258 the vendor to comply with the intent and provisions of this rule. For purposes of
259 this section, "vendor" includes a state, county or local governmental agency that
260 provides information technology services to a court.
261 (b) By contract the vendor will be required to notify the court of any
262 requests for compiled information or bulk distribution of information, including
263 the vendor's requests for such information for its own use.
264 EXPLANATORY NOTE
265 Adopted on an emergency basis effective October 1, 1996; Amended and
266 adopted effective November 12, 1997; March 1, 2001; July 1, 2006; March 1,
267 2009; March 15, 2009; March 1, 2010; March 1, 2012; March 1, 2015;_________.
268 Appendix amended effective August 1, 2001, to reflect the name change of State
269 Bar Board to State Board of Law Examiners.
270 Section 3(b)(3) was added, effective ____________, to clarify that the clerk
271 of court is not required to search within a court record for specific information that
272 may be sought by a requestor.
273 Section 3(c) was adopted, effective March 1, 2010, to state that protected
274 information may be contained in court records filed before the adoption of
275 N.D.R.Ct. 3.4.
276 Section 4(c) was amended, effective March 15, 2009, to allow parties who
277 enter into bulk distribution agreements with the courts to have access to birth date,
278 street address, and social security number information upon certifying compliance
279 with laws governing the security of protected information. Such laws include the
280 Federal Fair Credit Reporting Act, the Gramm Leach Bliley Act, the USA Patriot
281 Act and the Driver's Privacy Protection Act.
282 Section 5(b)(6) was amended, effective March 1, 2015, to clarify that the
283 restriction on public access to documents in domestic violence protection order
284 and disorderly conduct restraining order cases under this paragraph is limited to
285 cases that were dismissed summarily.
286 Section 5(b)(8) was amended, effective March 15, 2009, to list types of
287 protected information open to the public. The term "financial-account number" in
288 Section 5(b)(8) includes any credit, debit or electronic fund transfer card number,
289 and any other financial account number.
290 Section 5(b)(8) was amended, effective March 1, 2010, to incorporate the
291 exemptions from redaction contained in N.D.R.Ct. 3.4(b). A document containing
292 protected information that is exempt from redaction under N.D.R.Ct. 3.4(b) is
293 accessible to the public.
294 Section 5(b)(12) was added, effective ________________ to exclude party,
295 witness and crime victim contact information gathered and recorded by the court
296 for administrative purposes from public access.
297 Section 6(a)(6) was added, effective March 1, 2012, to provide a method for
298 the court to prohibit public Internet access to an electronic case record when
299 charges against a defendant are dismissed or the defendant is acquitted. A request
300 under Section 6(a)(1) is required before the court can act to prohibit access under
301 Section 6(a)(6).
302 Nothing in this rule or N.D.R.Ct. 3.4 precludes a clerk of court or the
303 electronic case management system from identifying non-confidential records that
304 match a name and date of birth or a name and social security number.
305 Joint Procedure Committee Minutes of April 23-24, 2015, pages 8-10; April
306 24-25, 2014, page 27; April 28-29, 2011, pages 9-12; September 23-24, 2010,
307 pages 16-20; September 24-25, 2009, pages 8-9; May 21-22, 2009, pages 28-44;
308 January 29-20, 2009, pages 3-4; September 25, 2008, pages 2-6; January 24, 2008,
309 pages 9-12; October 11-12, 2007, pages 28-30; April 26-27, 2007, page 31;
310 September 22-23, 2005, pages 6-16; April 28-29, 2005, pages 22-25; April 29-30,
311 2004, pages 6-13, January 29-30, 2004, pages 3-8; September 16-17, 2003, pages
312 2-11; April 24-25, 2003, pages 6-12. Court Technology Committee Minutes of
313 June 18, 2004; March 19, 2004; September 12, 2003; Conference of Chief
314 Justices/Conference of State Court Administrators: Guidelines for Public Access to
315 Court Records.
316 Cross Reference: N.D.R.Ct. 3.4 (Privacy Protection for Filings Made With
317 the Court).