Public access to court records in North Dakota could expand under a proposal to rewrite the state Supreme Court’s related rule.
Last month, Justice Jon Jensen, chair of the Court Services Administration Committee, submitted the committee’s proposed changes to administrative rules 19 and 41. The former concerns “mechanical changes” for document retention, Jensen said, while the AR 41 rewrite seeks to update the rule regarding public access and excluding certain records.
Justice Daniel Crothers chaired the committee during most of the review of AR 41, two to three years in the making. Judges, attorneys and members of the public comprise the committee, which reviewed AR 41 at the Supreme Court’s request.
A best practice issued last summer by the National Center for State Courts and State Justice Institute factored in, Crothers and Jensen said.
"Their suggestion was to eliminate any practical obscurity,” Jensen said. “In other words, people shouldn’t have to go to the courthouse to view records in 2018. Everyone should be able to access those records."
Jack McDonald, legal counsel for the North Dakota Newspaper Association, participated in an access policy subcommittee’s discussion of the AR 41 proposal, which he said is more “user-friendly" and sets good definitions for certain records.
“This will make it easier for the general public to access court records,” he said.
While clerks of court in many North Dakota counties email requested court records, Jensen said there is no requirement to send court records electronically.
“Each district courthouse is a little different about what they will send out and what they’ll give you and some of them will charge you,” McDonald said.
If the state Supreme Court adopts the proposal for AR 41, “electronic access is going to be required and remote access is going to be required,” Jensen said.
Burleigh and Morton counties and Mandan’s municipal court email court records while Bismarck’s municipal court requires a form to be filled out at its window with a defendant’s name and birth date or driver’s license number, as well as $1 per page for printed copies of records.
Municipal courts remain “an unanswered question” in the AR 41 proposal, said Lindsey Nieuwsma, staff attorney for the Court Services Administration Committee.
"It’s not something the committee directly addressed in talking about AR 41 so it’s probably a question that will need some further exploration," she said.
Mike Williams, a Fargo attorney who chaired the access policy subcommittee on AR 41, said discussion on public access tried “to strike a fair balance” on the extent of what should be public so as to protect some court users from harm, such as crime victims.
Data mining is also an example, McDonald said. Jensen said adoption records and domestic violence and juvenile files are not accessible.
“There are lots of examples of where people might mine the court system for information that might be harmful to others,” Williams said, such as a divorcing couple’s financial information or pedophiles searching for vulnerable children.
Meanwhile, providing a portal or system for remote access to court records would more than likely factor into the state Supreme Court’s budgeting in the next legislative session, Crothers said. But the court isn’t there yet.
“We are far enough in advance of the legislative session that I anticipate that, if we need legislative funding to implement part of the rule, I would hope that we would get that into our next budget request,” Crothers said. “State dollars being what they are, I can’t begin to predict if we would be successful.”
Supreme Court Clerk Penny Miller is accepting written comments on the AR 19 and 41 proposals until June 1. From there, the high court will consider the proposals and may adopt, amend, reject or do "any number of things." As it's an administrative matter, there is no time frame, she added.
Jensen said an implementation would most likely not be immediate but could come as early as Jan. 1, 2019, or sooner. He also said an adoption depends on what comments are received.
Crothers said he expects comments to go both ways, those for "easy, free remote access, and those saying, ‘Hold on there, there are some private matters going on, to be able to sit at home with your bunny slippers on and read about your neighbor’s legal problems, that’s quite another. I expect someone may comment on that, and frankly, I hope they do.”