Court approves amendments to records access rule Monday, October 31, 2022

Effective Nov. 1, the Supreme Court has adopted significant changes to Administrative Rule 41 on access to court records.

Rule 41 is the open records rule for the judicial branch. The new amendments to the rule make many of the procedures for access to other state government records applicable also to the judicial branch.

Under the amendments, the procedures in N.D.C.C. §44-04-18 for access to the records of other public entities are adopted for accessing court records. However, if Rule 41 provides a procedure for a specific type of records access, that procedure, not the statutory procedure, will apply. In other words, N.D.C.C. § 44-04-18 sets out the default procedure for court records access when no other procedure is specified in the rule.

Changes to N.D.C.C. §44-04-18 adopted after the November 1 effective date of amended Rule 41 will not automatically apply to judicial branch records access.

The type of statutory provisions most likely to apply when accessing court records include those on reasonable fees for records access, the permitted form of request, the reasonable time for response, and the number of copies of records that will be provided.

Rule 41 and N.D.C.C. §44-04-18(6) both provide that any request for records must comply with any applicable court orders and with rules relating to discovery or privilege.

Section 2 of Rule 41 sets out definitions applicable to records access. New definitions include “confidential record,” which is a record expressly declared confidential or prohibited from being open to the public and “exempt record,” which is a record that may be open at the discretion of the court but that is not required to be open. Records that are not confidential or exempt are presumed to be open records.

Some examples of confidential records are types of records that may not be disclosed under federal or state law, court rule, case law, or a court order, such as mental health and juvenile case records.

Exempt records include jury related records and judicial work product and drafts.

Under the rule, the register of actions, docket and index should indicate that a record exists, even if it is confidential, unless such disclosure would endanger an individual. The disclosure of the record’s existence, however, can only be delayed as long as the likely danger exists.

The amended rule does not reinstate remote internet access to court records. The public may access court records via courthouse terminals or by request made in person, by phone, email or letter.

Bulk distribution and compiling of court records both continue to be allowed under the amended rule. Requests for bulk or compiled records must be made to the state court administrator and a reasonable payment for these records may be required.

Under Rule 41, federal, state, and local officials exercising their duties have access to records as authorized by law. A request for records from a public official must be in writing and contain sufficient assurances the request is within the scope of the legal authorization.

Parties to an action may examine records in cases in which they are a party unless restricted by court order

Section 4 of Rule 41 provides a procedure for those seeking to restrict access to a court record, such as a new filing a party wishes to protect from public access. A restriction request can be made by a party, an individual whose information is present in the record, or the court itself. The request must be in writing, with notice to all parties and to all victims if the record contains victim information.

The rule requires the court to examine specific factors when deciding whether to restrict access a court record, including the risk of injury to individuals if the record remains open, individual privacy rights and interests, and whether the record contains proprietary business information.

Any court order restricting access to a record must be supported by findings and may be only as broad as necessary.

Section 4 also provides a procedure for use by persons seeking access to confidential or exempt records. A request for access must be made by motion in the same manner as a request to restrict access. In considering whether to grant access, the court must weigh the same factors that would be considered when deciding a motion to restrict.

Amended Rule 41 is available on the court system website at https://www.ndcourts.gov/legal-resources/rules/ndsupctadminr/41