COURT APPROVES AMENDMENTS TO RECORDS ACCESS RULE
MIKE HAGBURG Attorney at Law
Effective Nov . 1 , the Supreme Court 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 Nov . 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 of 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 to 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 , www . ndcourts . gov .
FALL 2022 27