Administrative Rule 41 - ACCESS TO COURT RECORDS

Obsolete Date: 3/1/2023

Section 1. Introduction

The longstanding public policy of the State of North Dakota is that records of public or governmental entities are public, open and accessible for inspection. This rule implements the constitutional open records provision for the judicial branch. To do so, the supreme court through this rule exercises its constitutional authority to provide for management of judicial branch records by adopting the structure and many of the procedures applicable to the rest of state government.

By this rule, the court exercises its authority under N.D.Const. art. XI, § 6 and art. VI, § 3. Unless another procedure is specifically provided in this rule, the procedures set out in N.D.C.C. §44-04-18 (2021) for access to records of other public entities are expressly adopted as the procedures for accessing court records. Statutory amendments after the effective date of this rule are not applicable to the judicial branch unless expressly adopted by an amendment to this rule. 

The procedures adopted by reference to N.D.C.C. §44-04-18 are to be read applying the definitions provided in this rule. These procedures include the reasonable fees that may be charged, the permitted form of request, the reasonable time for response, the number of copies that will be provided, and other requirements. Under N.D.C.C. §44-04-18(6), any request for records must comply with any applicable court orders or rules relating to discovery or privilege.

[Cross ref: N.D. Const. Art. I, sec. 9; N.D. Const. Art. I, sec. 12; N.D. Const. Art. XI, sec. 6; 22 N.D.C.C. Ch. 44-04; N.D.C.C. §§ 27–02–08 -10.] 

Section 2. Definitions.

(a) “Record” means recorded information of any kind, regardless of the physical form or characteristic by which the information is stored, recorded, or reproduced, which is in the possession or custody of a court of this state and which has been received or prepared for use in connection with public business or contains information relating to public business. “Record” does not include unrecorded thought processes or mental impressions, but does include preliminary drafts and working papers. “Record” does 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.

(b) “Confidential record” means all or part of a record that is either expressly declared confidential or is prohibited from being open to the public.

(c) “Exempt record” means all or part of a record that is neither required by law to be open to the public, nor is confidential, but may be open in the discretion of the court.

(d) “Court record” means a record that is an administrative record or a case record.

(e) “Case record” means a record relating to a particular judicial proceeding, including an index, calendar, docket, register of actions, official record of the proceeding, order, decree, judgment or minute order.

(f) “Administrative record” means a record that relates to the management, supervision or administration of a court.

(g) “Remote access” means remote internet access to a court record, including electronic search, inspection, or copying information, without a physical visit to a court facility.

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

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

Explanatory Notes to Section 2.

Prior versions of this rule referred to documents, actions, and information and were not consistent with how the Century Code defines records. This definition of “record” is copied from N.D.C.C. § 44-04-17.1(16) (2021) but modified to include only records in the possession of a court of this state. “Confidential record” and “exempt record” are also adopted from the Century Code definitions to facilitate classifying court records into the same structure of prohibited disclosure (confidential records), discretionary disclosure (exempt records), and presumptively required disclosure (all other records).

The definitions of “court record,” “case record,” and “administrative record” are substantially revised to derive from the definition of “record” and refer to a class of “record” by content.

“Remote access” is defined in this rule so that the court may provide convenient, self-service access to certain court records. This definition is intended to apply to anonymous or unauthenticated internet users but not to a user of an internet terminal provided in a court facility. This definition is not intended to apply to a telephone, letter or email request requesting records. The scope of records available by remote access may be narrower than the scope of records available through a courthouse terminal or individual request.

Section 3. Access to Court Records

(a) Court Records.

Unless otherwise provided by this rule, court records are open and accessible upon request consistent with N.D.C.C. § 44-04-18 (2021).

(b) Case Records.

(1) A court’s register of actions, docket or index must disclose the existence of any case record that is a confidential record or exempt record. Upon a finding that such disclosure would endanger an individual, a court may delay disclosure for a period of time corresponding to the duration of the likely danger.

(2) Case records filed before the March 1, 2009, effective date of N.D.R.Ct. 3.4 may contain information that must be redacted under N.D.R.Ct. 3.4(a). Such case records are confidential records and may be disclosed consistent with N.D.C.C. § 44-04-18.10 (2021).

(3) Bulk distribution of case records may be permitted if the records are not confidential records.

(4) Upon request and payment of the reasonable cost of compiling and providing the information, a person may request compiled information from case records in a format other than the format in which they are maintained.

(5) Any request for compiled information or bulk distribution of case records must be made to the state court administrator. The request must identify the information requested, describe the requestor’s purpose for requesting the information, explain how the purpose will serve public education or another public purpose, and describe how the requestor will provide for appropriate access limitations and security of any records that may be provided in response.

(6) The following case records are confidential records:

(A) A record the disclosure of which is prohibited by federal law, state law, court rule, applicable case law, or a court order specifically identifying the record.

(B) A declaration, affidavit, sworn testimony or record of proceedings in support of the issuance of a search or arrest warrant pending the return of the warrant.

(C) A complaint or associated arrest or search warrant to the extent confidentiality is ordered by the court under N.D.C.C. § 29-05-32 or N.D.C.C. § 29-29-22.

(D) A record filed with the court for in-camera examination pending disclosure.

(E) A record maintained in relation to a Child Relinquishment to Identified Adoptive Parent matter brought under N.D.C.C. Ch. 14-15.1.

(F) A record maintained in relation to a matter involving:

(i) an application for a domestic violence protection order under N.D.C.C. § 106 14-07.1-02;

(ii) a petition for a disorderly conduct restraining order under N.D.C.C. Ch. 108 12.1-31.2 sought on the basis of alleged domestic violence; or

(iii) a petition for a sexual assault restraining order under N.D.C.C. § 12.1-31-01.2. Orders of the court in these proceedings are confidential only in matters in which the initial petition was dismissed summarily by the court without a contested hearing.

(G) A record of a deferred imposition of sentence under N.D.R.Crim.P. 32.1 or pretrial diversion under N.D.R.Crim.P. 32.2 after the matter has been dismissed.

(H) A record of a case in which the court found no probable cause for the issuance of a criminal complaint.

(I) Records containing the following protected information, unless exempted from redaction by N.D.R.Ct. 3.4(c):

(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.

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

(K) Any criminal record ordered sealed under N.D.C.C. Ch. 12-60.1;

(L) Any employment, household or financial information provided in an application for indigent defense services.

(7) The following case records are exempt records:

(A) A record of the names of qualified or summoned jurors and contents of jury qualification forms;

(B) Addresses, phone numbers, email addresses of jurors;

(C) A record of voir dire of jurors;

(D) A judge or court employee’s work material, including personal calendars, recorded communications, bench memoranda, notes, work in progress, draft documents and non-finalized documents; and

(E) Any record submitted for filing is exempt until it is filed and remains exempt if its filing has been rejected.

(8) If the court receives a request under this rule from a federal, state, or local official acting in the exercise of their official duties and powers, to examine a confidential or exempt court record, and such access is specifically authorized by law, the court may disclose the requested record if the request is in writing and contains sufficient assurances that the request is within the scope of the legal authorization.

(9) Unless restricted by order of the court, parties to an action may examine records filed in the action.

(c) Administrative Records.

(1) Records maintained concerning individuals who are court employees, or who perform volunteer services for the court, are open in consistent with N.D.C.C. § 44-04-18.1 and N.D. Supreme Court Policy 120.

(2) Job applicant records are open to the extent consistent with N.D.C.C. §§ 44-04-18.1, 44-04-18.4, and 44-04-18.27 (2021)

(3) The following administrative records are confidential records:

(A) The name of a patron of the North Dakota Supreme Court Law Library or the North Dakota Legal Self Help Center or information sufficient to identify a patron or the subject about which a patron requested information;

(B) A record relating to a request for an opinion from the Judicial Ethics Advisory Committee, other than a formal opinion;

(C) Information concerning an employee grievance appeal to the personnel policy board.

(4) The following administrative records are exempt records.

(A) 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 exempt records consistent with N.D.C.C. §§ 44-04-24, 25 & 27.

(B) Preliminary and draft reports concerning court operations and other pre-decisional documents are exempt records. 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. Consistent with N.D.C.C. § 44-04-18(9) and (10), preliminary draft reports, and pre-decisional documents relating to court operations, are no longer exempt records once the draft reports and pre-decisional documents are circulated to any court policy advisory committee or to the public for comment.

(C) Remote access user records. Any record that would disclose that a user of a remote or electronic access system has access to a particular court record is an exempt record. Record access information is accessible by the public only on a showing of good cause under subsection 4(b)

(D) Proprietary and licensed material. Consistent with N.D.C.C. §§ 44-04-18.4 and -18.5, computer programs or other records that are subject to proprietary rights or license agreements are exempt records and may be disclosed only in accordance with the terms and conditions of any applicable agreements, licenses, or court order. Consistent with N.D.C.C. § 44-04-18(3), no record may be excluded from public access solely because access is provided by programs or applications subject to licensing agreements, or because the recordkeeping system is subject to proprietary rights.

(E) 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 exempt records.

(F) 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 exempt records.

(G) Consistent with N.D.C.C. § 44-04-18.24, any record maintained within a legislative bill tracking system is exempt.

Explanatory Notes to Section 3.

For certain case types, including juvenile court and mental health cases, all records in a case file are restricted by statute.

Parties who enter into bulk distribution agreements with the court may have access to birthdate, street address and social security number information upon certifying compliance with laws governing the security of protected information. Such laws include the federal Fair Credit Reporting Act, the Gramm Leach Bliley Act, the USA Patriot Act and the Driver’s Privacy Protection Act.

Warrants. Under N.D.R.Crim.P. 41(c)(1)(D), a search warrant must be executed within ten days. In contrast, an arrest warrant may be outstanding for months or years. All records supporting issuance of a search warrant are confidential pending return of the search warrant. Under N.D.C.C. § 29-05-32 and N.D.C.C. § 29-29-22, the district court may declare confidential the complaint, any associated arrest or search warrant, and supporting records. Unless there is an order under N.D.C.C. §29-29-22, a search warrant and supporting records are only confidential until the warrant has been executed. An arrest warrant and supporting records are not confidential without an order under N.D.C.C. §29-05-32.

Section 4. Limiting Access to Case Records

(a) Request to Restrict Access.

(1) A request to the court to declare a case record to be a confidential 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 subsection 5(f)(3).

(2) 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.

(3) In deciding whether to restrict access the court must consider that thepresumption 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 should include:

(A) the risk of injury to individuals,

(B) individual privacy rights and interests,

(C) proprietary business information, and

(D) public safety.

(4) Any access restriction must be no broader than necessary to protect the articulated interest. The court must consider reasonable alternatives declaring a record confidential, such as redaction or partial restrictions, and the court must make findings adequate to support the restriction. The court may not deny access to an entire record solely on the ground that the record contains confidential or closed information.

(5) 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.

(6) If a victim, as defined in N.D.Const. Art. I, § 25(4) requests, all victim contact information in a criminal case record must be redacted.

(7) If the court concludes, after conducting the balancing analysis and making findings as required by subsection 4(a)(3), that the interest of justice will be served, it may prohibit remote access to an individual defendant's electronic case record in a criminal case:

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

(B) if the defendant is acquitted.

If the court grants a request to restrict remote 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.” Such records remain available by in-person request at a court facility

(b) Request for Access.

(1) A request for access to a confidential record or a record previously withheld as exempt may be made by any member of the public or access may be considered on the court's own motion after notice as provided in subsection 4(c).

(2) In deciding whether to allow access, the court must consider whether there are sufficient grounds to grant access under applicable constitutional, statutory and case law. In deciding this the court must consider the standards outlined in  subsection 4(a).

(c) Form of Request.

(1) A request under this section must be made by a written motion to the court.

(2) If the request is for a case record, the requestor must give notice to all parties in the case.

(3) The court must require notice to be given by the requestor or another party to any identified victims in a criminal case and 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 subsection 4(a), the court must provide notice to the individual or entity that requested that access be prohibited.

Section 5. Methods of Access to Court Records.

(a) Methods of Access.

Unless otherwise provided in this rule, access to records will be consistent with the terms of N.D.C.C. § 44-04-18.

(b) Remote access.

In order to reduce administrative burden on the court and to provide greater public access to records, the court may provide remote access to court records that are not confidential records.

As a result of insufficient compliance with redaction requirements, the following records are not available through remote access:

(1) Any document not available by remote public access prior to January 1, 2020;

(2) Transcripts prepared for an appeal where there has been an assertion of rights in the trial or appellate court under Article I, Section 25, of the North Dakota Constitution;

(3) Audio or video recordings;

(4) Documents received but not filed by the clerk of the supreme court or district court.

(c) Access to court records at a court facility.

(1) A public access terminal will be available at each county courthouse for use by the public to access to court records stored in the Odyssey system. Upon receipt of a request for court records, court personnel may initially direct the person  requesting records to the public access terminal.

(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 may request the record from the clerk of court or the state court administrator. If a request is not in  writing, court staff may require a written clarification if disclosure of the records requires evaluation by the court. The request must clearly identify the record requested so that the record custodian can locate the record with reasonable effort. 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.

(d) 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 a 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. A person inspecting records will be directed to remain in the court facility until the records are returned and examined for completeness.

(e) Response by court to request to access 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 subsection 4(a) 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 subsection 4(a) to determine whether to grant or deny the access requested.

(f) Response to request to access administrative records.

The state court administrator may set reasonable time and manner of inspection requirements that ensure timely access while protecting the integrity of administrative records and preserving the affected office from undue disruption. If there is doubt about whether an administrative record may be an exempt record or a confidential record, the matter must be referred to the state court administrator for determination. The state court administrator must use the standards listed in subsection 4(a) to determine whether to allow access to the record.

Section 6. 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 services to gather, store, or provide access to court records, the contract must require the vendor to comply with 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.