Remote access went live Jan. 1, but the high court unplugged it days later after privacy complaints of personal information in filings. Court documents are publicly available at county courthouses, and clerks of court usually will email documents upon request, but they aren’t required to do so. A rewritten administrative rule the court adopted in 2019 enabled the remote access.
A 2009 court rule requires the redaction of information such as Social Security numbers, birth dates, taxpayer identification numbers, minors’ names and financial accounts. Filing attorneys are responsible for redacting the information.
The court in February made available template motions to redact, but it’s unclear how many people have filed such motions. State Court Administrator Sally Holewa said the court doesn't track the motions. It's unknown how many documents might contain unredacted personal information.
The judiciary's Court Services Administration Committee is reviewing the remote access for a solution to send to the Supreme Court for consideration.
Chairman and East Central District Judge Steven McCullough said the committee is considering "philosophic" aspects of remote access, such as allowing it "across the board," maintaining or restructuring the 2019 rule, licensing users for accessing certain documents, establishing fees and pondering how to address pre-2009 records that contain personal information.
"Each one of them presents a series of legal, logistical, computer issues, technology issues that we need to probably look at in more detail," McCullough said. "But depending on which route we're going to start down, each one of those technological or logistical issues changes a little bit."
The committee will decide how to proceed at a meeting to be held sometime this fall, he said. Subcommittees likely will be established to address specific issues.
Committee member and Bismarck attorney Levi Andrist proposed seeking input from information technology experts for a solution to unredacted personal information. North Dakota's platform for online court records "really is on the cutting edge," he said.
"To me ... we should do our best to harness kind of being on the forefront, and harnessing that, to me, really means maximizing public access to those records," Andrist said.
McCullough said budgetary restraints appear to preclude any new technology and the staff time to accomplish that kind of solution.
Holewa said the court's goal remains the same as the 2019 rule: to remove "artificial barriers" to public records. Chief Justice Jon Jensen previously said the new rule was in line with national state court groups’ best practices to eliminate physical barriers to records, such as driving many miles to a courthouse.
Other public entities have expanded remote access amid the coronavirus pandemic, mostly out of necessity to avoid gatherings. State and local boards have held meetings via videoconference. Legislative leaders have ramped up livestreaming and remote capabilities in advance of the 2021 Legislature, which convenes in January. Court proceedings also have been held remotely.
Holewa said the pandemic hasn’t hastened a decision to restore remote access to court documents.
“We want to make sure we get it right the second time, and that’s just going to take time to work out all of the details that we thought we had addressed initially and found out we hadn’t,” she said.
The court’s 2019 rule was years in the making. The proposal took public comment, some of which noted privacy concerns. The remote access lasted for about a week before its suspension.
North Dakota Newspaper Association attorney Jack McDonald said he'd like to see remote access restored as soon as possible. He sees the suspension as "penalizing the public" for attorneys who don't adhere to the redaction rule. But he understands the "tough problem" at hand for the committee.
McCullough said he senses an interest to solve remote access sooner rather than later.
"We know that the court wants something back so it just doesn't sit in limbo forever," he said.
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