Restoration of remote access to state court documents isn’t in sight despite a new rule modifying public access to such records.
One watchdog welcomes the new rule but is disappointed that court records remain unavailable online.
The North Dakota Supreme Court on Tuesday by a 4-1 vote adopted the rule, effective Nov. 1, which requires clerks and court officials to provide electronic copies of records to requestors. Before they had no requirement to do so, but usually emailed documents.
The rule largely makes public access to court records consistent with open records laws for the rest of state government, and clarifies what records are available, according to State Court Administrator Sally Holewa. The court has authority to make its own rules for administration of court records.
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North Dakota Newspaper Association attorney Jack McDonald hails the new rule as one that overall creates greater access to court records and makes clear what is available.
In January 2020, remote public access to more than 10 years of documents went live on the court’s website, making the records obtainable with the click of a mouse. Days later the court pulled the plug following complainants’ phone calls of privacy concerns regarding personal information that attorneys had not redacted from documents. Records remain publicly available but must be requested via email or viewed at a courthouse.
A 2009 privacy rule sets requirements for redacting information such as Social Security numbers, birth dates, minors’ names and financial accounts. It is the responsibility of filers to adhere to the privacy rule. If they don’t, records obtained through email or at a courthouse would still include private personal information.
A line in the new rule intends that should remote access be restored, only records from Jan. 1, 2020, onward would be remotely available — “leaving the door open for” future remote access, Holewa said.
“The court doesn’t intend to make the records available remotely at this time,” she said.
McDonald said he’d like to see the remote access restored but doesn’t expect it yet due to the redaction problems.
McDonald
“It’s a little disturbing in that the difficulty arose in the first place because attorneys weren’t redacting what they were supposed to redact in their filings,” he said, noting that there also is personal information unredacted from traffic citations issued by law enforcement.
The order adopted Tuesday states “the Court will continue its current policy of limiting the scope of case records published on the court’s public websites so long as persons filing documents continue to demonstrate an unacceptably high rate of failure to comply with the Court’s redaction requirements and other rules or laws restricting access to certain information or records.”
Justice Jerod Tufte, who helped write the new rule, did not respond to an email inquiry about the “unacceptably high rate of failure to comply” with redaction requirements.
Holewa said the court still has a goal of providing documents online, “but the stumbling point continues to be compliance with the rules on restrictions because that’s the filer’s responsibility.”
Holewa
“The issue becomes how do you get people to be sufficiently compliant with those in order to be confident that when we do open up the records we’re not inadvertently exposing data or things that we shouldn’t,” the state court administrator said.
It’s not up to clerks to modify people’s documents — “That’s not a role we ever want to get into, and there’s liability shifted onto the state in that scenario,” Holewa said.
The remote access came after a yearslong process to rewrite the rule. Chief Justice Jon Jensen had told the Tribune remote access aligns with national state court groups’ best practices to eliminate physical barriers to public records, such as having to drive many miles to courthouses.
Justice Lisa Fair McEvers voted against the order Tuesday. She declined comment to the Tribune on her reasons.
