Administrative Rule 41 - ACCESS TO JUDICIAL RECORDS

Obsolete Date: 11/11/1997

SECTION 1. POLICY.

The policy of the North Dakota judicial system is judicial system records are generally open to the public for examination, inspection, and copying during regular office hours, subject to reasonable inspection restrictions to ensure the integrity of those records. This rule, however, retains the confidential status of certain records the confidentiality of which is dictated by state or federal law or court rule. This rule seeks to balance the competing interests of disclosure and confidentiality by providing a mechanism to guide courts and court personnel in determining the accessibility of records in the custody of the judicial system.

SECTION 2. DEFINITIONS.

As used in this Rule:

(1) "Custodian" means the person responsible for the safekeeping of any records held by a court or any judicial records held by a court administrator or clerk of court. In the absence of the person usually responsible, the person who is temporarily responsible for the records is the custodian.

(2) "Custodian judge" means, for any record in a case file in the district court, the presiding judge of that case or the judge designated in writing by the presiding judge of the judicial district; and, for any record not in a case file in the district court, the presiding judge of the judicial district or the judge designated in writing by the presiding judge.

(3) "Personnel" means clerks, judges, and staff of a court.

(4) "Records" means any recorded information that is collected, created, received, maintained, or disseminated by a court or court personnel.

SECTION 3. RECORDS SUBJECT TO EXAMINATION, INSPECTION, AND COPYING.

Except as provided in Sections 4, 7 and 8, all case records and administrative records are subject to examination, inspection, and copying.

SECTION 4. RECORDS EXEMPT FROM DISCLOSURE.

The following records are confidential and exempt from disclosure:

(1) Documents and records to which access is otherwise restricted by state or federal law or court rule. A partial list is contained in the Appendix to this rule.

(2) Affidavits or sworn testimony and records of proceedings in support of the issuance of search or arrest warrant pending the return of the warrant.

(3) Information in a complaint and associated arrest or search warrant if ordered confidential by the court under Section 29-05-32 or 29-29-22, NDCC.

(4) Documents filed or lodged with the court for in camera examination pending disclosure.

(5) Except for orders of the court, domestic violence protection order files and disorderly conduct restraining order files when the restraining order is sought due to domestic violence.

(6) Judicial work product or drafts, including all notes, memoranda or drafts prepared by a judge or a court-employed attorney, law clerk, legal assistant or secretary and used in the process of preparing a final decision or order, except official minutes prepared pursuant to law.

(7) Computer programs and related records, including technical and user manuals, which the judicial branch has acquired and agreed to maintain on a confidential basis.

(8) Names of qualified jurors and contents of jury qualification forms if disclosure is prohibited or limited by the court.

SECTION 5. REQUEST FOR RECORDS.

Any person desiring to inspect, examine or copy judicial records shall make an oral or written request to the custodian. If the request is oral, the custodian may require a written request if the 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 each record requested so that the custodian can locate the record without doing extensive research. Continuing requests for documents not yet in existence will not be considered. A clerk of court is not required to allow access to more than ten files per day per requestor but may do so in the exercise of the clerk's discretion if such access will not cause disruption to the clerk's primary function.

SECTION 6. RESPONSE TO REQUEST.

The custodian shall respond to the request as promptly as practical. If the request for access and inspection is granted, the custodian 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. If a request cannot be granted promptly, or at all, an explanation must be given to the requesting person as soon as possible. The requesting person has the right to at least the following information: the nature of any problem preventing access and the specific statute, federal law, or court or administrative rule that is the basis of the denial. The explanation must be in writing if desired by the requesting person.

SECTION 7. RESPONSE BY CUSTODIAN JUDGE.

If a custodian determines there is a question as to whether records should be disclosed, or if a request is made for a ruling by a judge after the custodian denies the request, the custodian shall refer the request to the custodian judge for determination. The custodian judge shall make a written determination as promptly as possible as to whether the records should be disclosed . In the sole discretion of the custodian judge, an informal hearing may be held by the custodian judge on the question of whether the records should be disclosed. The custodian judge shall determine the time and place of the hearing and the notice to be given by the custodian to the person requesting the records and any other interested person. If a hearing is held under this rule, the response to the person requesting the record may be delayed a reasonable time after the conclusion of the hearing.

SECTION 8. MOTION REGARDING THE SEALING OF RECORDS.

Any interested person or the court on its own motion may move to seal or unseal a part or all of the records in any judicial proceeding. The custodian judge shall hold a hearing on the motion after the moving party gives notice of the hearing to all parties to the judicial proceeding and any other interested party designated by the custodian judge. The custodian judge shall issue a written decision on the motion to seal or unseal records which may be reconsidered, altered or amended by the court at any time.

SECTION 9. PROCEEDINGS AFTER DENIAL.

If a custodian denies a request for the examination or copying of records, the aggrieved party may file a request for a ruling by the custodian judge. If the custodian judge denies a request for the examination or copying of records, the sole remedy of any aggrieved person is to institute proceedings for disclosure in the district court.

SECTION 10. COST OF COPYING RECORDS

The cost to be charged to the person requesting that records be copied will be determined by the custodian or the custodian judge.

SECTION 11. APPLICATION.

This rule applies to all judicial records existing on or after the date of adoption of this rule. This rule does not prevent access to records by the following persons in the following situations:

(1) Federal, state and local officials or their agent examining a judicial record in the exercise of their official duties and powers.

(2) Parties to an action and their attorney examining the court file of the action, unless restricted by order of the court.

(3) Disclosure by the custodian of statistical information that is not descriptive of identifiable persons.

SECTION 12. EXPIRATION DATE.

This rule expires on December 31, 1997.

Dated at Bismarck, North Dakota, September 25, 1996.

Gerald W. VandeWalle, Chief Justice
Herbert L. Meschke, Justice
William A. Neumann, Justice
Dale V. Sandstrom, Justice
Mary Muehlen Maring, Justice

ATTEST:
Penny Miller,Clerk
North Dakota Supreme Court

[Adopted on an emergency basis effective October 1, 1996, subject to comment.]

APPENDIX

Statutes, court rules, and federal regulations making certain case records and administrative records confidential, in whole or in part, include:

ND Century Code

12.1-32-07.2(2) Records and papers concerning deferred imposition of sentence when guilty plea is withdrawn or guilty verdict set aside

12.1-32-09(3) Notice specifying defendant as a dangerous special offender for sentencing purposes

12.1-35-03 Information identifying a child victim of a crime

14-02.1-03.1(3), (4), (11) Records involving judicial authorization for abortion for unmarried minor

14-09.1-06 Mediation proceedings concerning contested child support, custody, or visitation

14-15-16(4) Adoption proceedings

14-17-19 Paternity proceedings

23-07.6-11 Confinement proceedings for those with communicable diseases

23-02.1-27 Certain information in birth and death certificates

25-03.1-43 Mental health commitments

27-20-51 Juvenile court records

27-09.1-12(4) Jury selection records

29-10.1-30, -31 Grand jury proceedings

30.1-11-01 Wills deposited for safekeeping

37-01-34 Recorded military discharge papers

Court Rules

Rule 32(c), NDRCrimP Presentence investigation reports

Federal Regulations

22 C.F.R. Section 51.33 Passport records

Boards and commissions that are governed by rules adopted by the Supreme Court include: Commission for Continuing Legal Education; Disciplinary Board; Judicial Conduct Commission, State Bar Board.