The new rule that took effect Aug. 1 implements the open meetings provision of the North Dakota Constitution for the judicial branch. Court meetings have always been accessible, but this rule removes any doubt, according to North Dakota Newspaper Association attorney Jack McDonald.
He said that it's a natural follow to the state Supreme Court's 2020 rewrite of the public access rule, but it's not nearly as controversial. The public access rule that included remote access to court documents with the click of a mouse caused many concerns regarding privacy violations when it was adopted.
Examples included people upset about a birth date being easily available, or the name of an adopted child, according to McDonald.
"I would view the opposition as not opposition to the availability of (court documents) so much as it was to how they were available through the internet," McDonald said. "Nobody was really wanting to make more closed records. They were just against the idea that there was just carte blanche access to every single record there was through the internet."
Before 2020, people who wanted court documents had to go to a courthouse, or request a clerk of court email the information. Most clerks did, but they were not required to do so.
The 2020 rule granted remote public access to more than 10 years' worth of court documents. But the state Supreme Court suspended remote access after a week due to violations of a 2009 privacy rule that prohibits information such as Social Security numbers, birth dates, minors' names and financial account numbers from appearing on documents.
It is the responsibility of the filer to redact the information, according to State Court Administrator Sally Holewa. She said the court did not anticipate such a widespread disregard for the rule by filers. There also was confusion among the pubic.
Holewa recalled the office received at least 10 complaints a day when the records first went up online. Some were of legitimate violations of the privacy rule, but she said many were not.
"People don't always realize court documents are public documents. And so the calls are 'Well, whose business is it that I have this collection judgment?' or 'Whose business is it that I file for divorce?'" she said.
The court is not actively working on reinstating remote access, as officials are unsure of how to get filers such as attorneys and judges to comply with the privacy rule and ensure the necessary information is properly redacted.
"So right now, it was whoever files is responsible for making sure it complies. If we were to take that on with the clerk's office, we would be shifting any liability for a missed redaction from the individual filing, to the state," Holewa said. "And we don't want to make that transition, at least not unless we had the staff and the confidence that we could get clean documents."
Holewa said lawmakers during the 2023 Legislature denied the state Supreme Court's request to transfer some of the county clerks to state employment. The transfer would have possibly enabled them to adopt a filing system similar to Minnesota's, which Holewa points to as a potential solution. Minnesota has specially trained staff, including lawyers, who look at every document and ensure that privacy protections are in place and the proper information is redacted.
But this shifts the liability of upholding privacy rules onto the state court office, and Holewa said the office does not have the resources to meet those standards. Liability issues also prevent clerks from rejecting a document for not meeting the requirements.
Both McDonald and Holewa mentioned software that could possibly be used to properly file documents, but that could cost up to $200,000 a year. The software also would have to be maintained and taught in order to find more complicated data such as minors' names.
"Our North Dakota system, it's traditionally underfunded and understaffed, and so you don't want to do anything that would further make filing things and the life of the clerk more complicated or harder," McDonald said.
Licensed attorneys are still able to remotely access court records, but citizens must either go through a terminal at a courthouse or request documents via email.
The state Supreme Court last fall began requiring clerks and court officials to provide copies of records to requesters. The modification to the public access rule also included a provision that should remote access be restored, only records from Jan 1. 2020, onward would be remotely available. Holewa said this date was chosen as a reminder to filers to comply with the privacy rule.
She said many people who seek remote access are involved with cases, and either have to pay their lawyer to receive their files, or drive to the courthouse to retrieve them. She said the court's goal with remote access is to remove barriers and make the system more fair, especially for those who represent themselves.
"If you have a court case and you represent yourself, the lawyer on the other side can get all the documents sitting at his or her desk. You have to drive to the courthouse ... it would level the playing field for everyone, and I think that's a good goal to go toward," she said.
Holewa said it's still a goal for the court system to provide remote access as officials strive for greater transparency. She and McDonald both believe that openness enables people to better understand government.
"I'm a great believer that public records are important for the public to learn what's going on, both in government and in their own court system. And the way they can find that out is through access to the records and the meetings," McDonald said. "The more that the public can understand how the court system works, the more they'll agree with the court system."
(c)2023 The Bismarck Tribune (Bismarck, N.D.) Distributed by Tribune Content Agency, LLC.
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