Administrative Rule 41 - ACCESS TO COURT RECORDS

Obsolete Date: 11/1/2022

Section 1. Introduction.

The State of North Dakota has always favored open government and an informed citizenry. Consistent with this policy, this rule is intended to provide a comprehensive framework for public access to court records. This policy is based on two fundamental principles:

(a) Court records are presumptively open to public access; and

(b) Public access should not change depending on whether access is remote or at the courthouse.

Section 2. Purposes of the Policy.

(a) Maximize accessibility of court records.

(b) Protect users of the court from harm.

(c) Make effective use of court resources.

Section 3. Definitions.

(a) “Bulk distribution”: the distribution of all, or a significant subset, of the information in court records without modification or compilation.

(b) “Compiled information”: information that is derived from the selection, aggregation or reformulation of some specified subset of data from more than one individual case record.

(c) “Court records”: the sum of all administrative and case records in the judicial branch.

(1) “Administrative record”: court records that pertain to management, supervision or administration of the court and are not part of a case record.

(2) “Case record”: any document, action or information that is collected, received or maintained by a clerk of court connected to a judicial proceeding. It may include an index, calendar, docket, register of actions, official record of the proceeding, order, decree, judgment or minute order. These may have been collected in a case management system that is used to track information. Case records may contain both public and confidential information. Case records do not include records that have been disposed of under court records management rules, or records to which a court has access but which are not a part of the court records as defined in this Rule.

(d) “Remote access” means the ability to electronically search, inspect, or copy information in a court record without the need to physically visit the court facility where the court record is maintained.

Section 4. Who Has Public Access.

(a) Every member of the public should have the same access to court records.

(b) The public is defined to include:

(1) Any person, business, or non-profit entity;

(2) Any governmental agency for which there is no existing policy defining the agency’s access to court records;

(3) Media organizations; and

(4) Entities that gather and disseminate information for whatever reason.

(c) The public does not include:

(1) Court employees, including all direct and contract employees;

(2) Entities who assist the court in providing court services;

(3) Governmental agencies whose access to case records is defined by another statute, rule, order or policy; and

(4) Parties to an action and their attorneys examining the case records, unless restricted by order of the court, but parties and attorneys may not access judge and court personnel work material in the court file.

(d) Public access is synonymous with anonymous access.

Section 5. General Access Rule.

(a) Case Records

(1) Information in the case record is accessible to the public except as prohibited by Section 5 (e) or (f).

(2) There generally should be a public indication of the existence of case information in a record to which access has been prohibited, but that indication should not disclose the nature of the protected information.

(3) If harm may be done by indicating the existence of case information then no indication of that existing record should be open to the public.

(4) Access to case records filed before March 1, 2009. Case records filed before the adoption of N.D.R.Ct. 3.4 may contain protected information listed under N.D.R.Ct. 3.4(a). This rule does not require the review and redaction of protected information from a case record that was filed before the adoption of N.D.R.Ct. 3.4 on March 1, 2009.

(b) Remote Access to Case Records.

(1) Public case records are presumptively accessible remotely.

(2) Access Regulation. The Supreme Court may adopt and implement other policies to regulate remote access to court records. These policies must be posted publicly on the Court's website.

(c) Request for Bulk Distribution of Case Records.

(1) Bulk distribution of information in the case record is permitted for public records.

(2) Requests for bulk distribution of information not publicly accessible can be made to the court for purposes in the public interest. Courts have discretion to refuse such requests, to charge fees reimbursing the court for the costs of distribution, and to impose conditions on the requestor for access.

(d) Request for Compiled Information from Case Records.

(1) The public may request access to public case records that are not normally compiled in the requested format. The court may require the requestor pay the cost of compiling and distributing the data.

(2) Requests for compiled distribution of information not publicly accessible can be made to the court for purposes with a public benefit. Courts have discretion to refuse such requests, to charge fees reimbursing the court for the cost of distribution, and to impose conditions on the requestor for access.

(e) Case Records Excluded from Public Access.

(1) Case records may not be made accessible to the public if barred by federal law, state law, court rule, or relevant case law.

(2) Case records may also be excluded from public access if the court determines that harm would ensue, per the objective in Section 2(b).

(3) The following information in a case record is not accessible to the public:

(A) declarations, affidavits, sworn testimony and records of proceedings in support of the issuance of a search or arrest warrant pending the return of the warrant;

(B) information in a complaint and associated arrest or search warrant to the extent confidentiality is ordered by the court under N.D.C.C. §§ 29-05-32 or 29-29-22;

(C) documents filed with the court for in-camera examination pending disclosure;

(D) case information and documents in Child Relinquishment to Identified Adoptive Parent cases brought under N.D.C.C. Ch. 14-15.1;

(E) domestic violence protection order files and disorderly conduct restraining order files when the restraining order is sought due to domestic violence, except for orders of the court;

(F) sexual assault restraining order files, except for orders of the court;

(G) documents in domestic violence protection order and disorderly conduct restraining order cases in which the initial petition was dismissed summarily by the court without a contested hearing;

(H) names of qualified or summoned jurors and contents of jury qualification forms if disclosure is prohibited or restricted by order of the court;

(I) addresses of jurors;

(J) records of voir dire of jurors unless disclosure is permitted by court order or rule;

(K) after dismissal, records of deferred impositions of sentences or pretrial diversions;

(L) records of a case in which the magistrate finds no probable cause for the issuance of a complaint;

(M) unless exempted from redaction by N.D.R.Ct. 3.4(c), protected information:

(i) except for the last four digits, social security numbers, taxpayer identification numbers, and financial account numbers,

(ii) except for the year, birth dates, and

(iii) except for the initials, the name of an individual known to be a minor, unless the minor is a party, and there is no statute, regulation, or rule mandating nondisclosure;

(N) judge and court personnel work material, including personal calendars, communications from law clerks, bench memoranda, notes, work in progress, draft documents and non-finalized documents;

(O) the property and debt listing of the parties to a divorce as provided by N.D.C.C. § 14-05-24.3.

(4) This rule does not preclude access to court records by federal, state, and local officials, or their agents, examining a court record in the exercise of their official duties and powers.

(5) A member of the public may request the court to allow access to information excluded under Section (5)(e) or prohibited under Section (5)(f)(1) as provided in Section 5(f)(2).

(f) Requests to Prohibit Public Access to Information in Case Records or to Obtain Access to Restricted Information.

(1) Request to Prohibit Access.

(A) A request to the court to prohibit public access to information in a case record may be made by any party to a case, by the individual about whom information is present in the case record, or on the court's own motion on notice as provided in Section 5(f)(3).

(B) The court must decide whether there are sufficient grounds to overcome the presumption of openness of case records and prohibit access according to applicable law.

(C) In deciding whether to prohibit access the court must consider that the presumption of openness may only be overcome by an overriding interest. The court must articulate this interest along with specific findings sufficient to allow a reviewing court to determine whether the closure order was properly entered. Considerations of harm should include:

(i) the risk of injury to individuals,

(ii) individual privacy rights and interests,

(iii) proprietary business information, and

(iv) public safety.

The court should also consider applicable law. Where possible, explicit standard legal tests should be applied to such decisions.

(D) The closure of the records must be no broader than necessary to protect the articulated interest. The court must consider reasonable alternatives to closure, such as redaction or partial closure, and the court must make findings adequate to support the closure. The court may not deny access only on the ground that the record contains confidential or closed information.

(E) In restricting access the court must use the least restrictive means that will achieve the purposes of this rule and the needs of the requestor.

(F) If a victim requests, all victim contact information in a criminal case record must be redacted.

(G) If the court concludes, after conducting the balancing analysis and making findings as required by Section 5(f)(1)(A) through (E), that the interest of justice will be served, it may prohibit public Internet access to an individual defendant's electronic case record in a criminal case:

(i) if the charges against the defendant are dismissed; or

(ii) if the defendant is acquitted.

If the court grants a request to prohibit public Internet access to an electronic case record in a criminal case, the search result for the record must display the words "Internet Access Prohibited under N.D.Sup.Ct. Admin.R 41."

(2) Request to Obtain Access.

(A) A request to obtain access to information in a case record to which access is prohibited may be made to the court by any member of the public or on the court's own motion on notice as provided in Section 5(f)(3).

(B) In deciding whether to allow access, the court must consider whether there are sufficient grounds to overcome the presumption of openness of case records and continue to prohibit access under applicable constitutional, statutory and case law. In deciding this the court must consider the standards outlined in Section 5(f)(1)(C) and Section 2.

(3) Form of Request.

(A) The request must be made by a written motion to the court.

(B) The requestor must give notice to all parties in the case.

(C) The court may require notice to be given by the requestor or another party to any individuals or entities identified in the information that is the subject of the request. When the request is for access to information to which access was previously prohibited under Section 5(f)(1), the court must provide notice to the individual or entity that requested that access be prohibited.

Section 6. Timing of Public Access to Case Records.

(a) Remote access to case records is essentially available at all times, subject to publicly scheduled downtimes for system maintenance and unforeseen technical issues.

(b) Physical access to case records is available at the appropriate courthouse during normal working hours.

(c) Courts should make case records available in a reasonable time after filing. Courts should also respond within a reasonable time to requests for access to bulk or compiled case records and for requests governed by Section 5(f), and inform the requestor when the bulk or compiled records will be available for dissemination.

Section 7. Operational Requirements.

(a) Best practices should be used to protect case records not open to the public.

(b) Search capabilities for public case records should support reasonable flexibility.

(c) Search capabilities should not impose an undue operational burden on court systems.

(d) Persons or organizations granted access beyond what is available to the public  should be managed by role and required to identify and authenticate using best practices.

Section 8. Access Fees.

(a) The court may charge a fee for access to court records.

(b) Any fees charged should be reasonable for the services provided.

(c) The appropriate court or state court administrator may waive or reduce access fees upon a showing of indigency by the requestor.

Section 9. General Access Rule: Court Administrative Records.

Court administrative records are open to the public except as follows:

(a) Records that are not accessible to the public under federal law, state law, court rule, case law or court order.

(b) Records maintained concerning individuals who are court employees, or who perform volunteer services for the court, are open in accordance with North Dakota Century Code 44-04-18.1, N.D. Supreme Court Policy 120, and N.D.Sup.Ct.Admin.R. 33.

(c) Job applicant records are open in accordance with North Dakota Century Code 44-04-18.27.

(d) Security records. All security plans, codes and other records that provide for the security of information, individuals, or property in the possession or custody of the courts against theft, tampering, improper use, illegal releases, trespass, or physical abuse or violence are excluded from public access.

(e) Preliminary and draft reports concerning court operations; pre-decisional documents. Final administrative documents and reports concerning the operation of the court system are open for public inspection and copying by the custodian on court premises. Preliminary drafts of such reports, and pre-decisional documents relating to court operations, shall be open once such draft reports and such pre-decisional documents are circulated to any court policy advisory committee or the public for comment.

(f) Remote electronic access user records. Data or information that would disclose that a user of a remote or electronic access system has access to a particular court record is excluded from public access. Record access information shall be accessible by the public only on a showing of good cause pursuant to the process set forth by this rule.

(g) Proprietary and licensed material. Computer programs or other records that are subject to proprietary rights or license agreements shall only be disclosed in accordance with the terms and conditions of the applicable agreements and licenses, or by court order. No record shall be excluded from public access solely because access is provided by programs or applications subject to licensing agreements, or because they are subject to proprietary rights.

(h) Copyrighted documents and materials. Documents and materials produced and copyrighted by the court are open to public inspection but may not be republished without proper authorization from the court.

(i) Judicial branch training records and reports. Evaluation materials and records generated by participants in judicial education programs such as test scores, educational assessments, practical exercise worksheets, and similar materials are excluded from public access.

(j) Party, witness and crime victim contact information gathered and recorded by the court for administrative purposes, including telephone numbers and e-mail, street and postal addresses are excluded from public access.

(k) The name of a patron of the North Dakota Legal Self Help Center or information sufficient to identify a patron or the subject about which a patron requested information is excluded from public access.

Section 10. Methods of Access to Court Records.

(a) Remote Access. Remote access to public court records is essentially available at all times, subject to publicly scheduled down times for system maintenance and unforeseen technical issues.

(b) Access to Court Records at Court Facility.

(1) Public access Terminal. A terminal will be available at each county courthouse for public access to court records stored statewide in the Odyssey system.

(2) Request for access to other records. Any person desiring public access to a court record that is not available on the public access terminal must make an oral or written request to the custodian of the record; the clerk of court or the State Court Administrator. If the request is oral, the record custodian may require a written request if the record custodian determines that the disclosure of the records is questionable or the request is so involved or lengthy as to need further definition. The request must clearly identify the record requested so that the record custodian can locate the record without doing extensive research. Continuing requests for a document not yet in existence may not be considered. The record custodian may not ask the motive or reason for requesting the records or for the identity of the person requesting public records.

(A) Response to Request to Access Case Records. A clerk of court is not required to allow access to more than ten case files per day per requestor but may do so in the exercise of the clerk's discretion if the access will not disrupt the clerk's primary function. If the request for access and inspection is granted, the clerk may set reasonable time and manner of inspection requirements that ensure timely access while protecting the integrity of the records and preserving the affected office from undue disruption. The inspection area must be within full view of court personnel whenever possible. The person inspecting the records may not leave the court facility until the records are returned and examined for completeness.

(B) Response by Court to Request Access to Case Records. If a clerk determines there is a question about whether a case record may be disclosed, or if a written request is made under Section 5(f) for a ruling by the court after the clerk denies or grants an access request, the clerk must refer the request to the court for determination. The court must use the standards listed in Section 5(f) to determine whether to grant or deny the access requested.

(C) Response to Request to Access Administrative Records. If the request for access and inspection of administrative records is granted, the State Court Administrator may set reasonable time and manner of inspection requirements that ensure timely access while protecting the integrity of the records and preserving the affected office from undue disruption. If there is a question about whether an administrative record may be disclosed, the matter must be referred to the State Court Administrator for determination. The State Court Administrator must use the standards listed in Section 5(f)  to determine whether to grant or deny the access requested.

(3) Methods of Access. The record custodian is not required to provide a written copy of a record that is available to the requestor on the court's website or on the internet. The record custodian shall notify the requestor that the record is available online and direct the requestor to the website where their record can be accessed. If the requestor does not have reasonable access to the internet due to lack of computer, lack of internet availability or inability to use a computer or the internet, the record custodian shall produce paper copies for the requestor but may charge applicable fees as set by the Court.

Section 11. Obligations of Vendors Providing Information Technology Support to a Court to Maintain Court Records.

(a) If the court contracts with a vendor to provide information technology support to gather, store, or make accessible court records, the contract will require the vendor to comply with the intent and provisions of this rule. For purposes of this section, "vendor" includes a state, county or local governmental agency that provides information technology services to a court.

(b) By contract the vendor will be required to notify the court of any requests for compiled information or bulk distribution of information, including the vendor's requests for such information for its own use.