After just one week, the general public can no longer view statewide court records online. The state Supreme Court moved to take the records down following shock that sensitive information, such as Social Security numbers, drivers license numbers and graphic crime scene photos and descriptions were so easily accessible.
The records became available to view online Jan. 1. They can still be viewed by members of the public by visiting any North Dakota courthouse.
Tammy Oltz, UND assistant law professor and director of the UND Thormodsgard Law Library, said though the court’s intention in making the records more accessible was good, the implementation was flawed. The decision to take the records offline is a good one, she said.
"I really feel the court was trying to do something good here," she said. "And somehow it just went too quickly."
Grand Forks County District Court Clerk Rebecca Absey said it’s up to individuals to contact the court to have sensitive information taken down if it’s mistakenly put online. She said that, since Jan. 1, her office has received three emailed requests to have information removed. She was unsure how many requests had been received via phone call.
Making court documents accessible online is considered best practices by the National Association of State Courts, and a number of courts have begun putting records online, including federal courts, Oltz emphasized. She said she has followed the issue carefully and believes transparency in the court system is an integral part of democracy.
Before the new policy was implemented, it underwent a three-year review process, which included a period of public comment. Oltz said the court received relatively few comments, and only a handful brought up safety concerns, such as identity theft or stalking.
She believes that's where the shock came from when the records were made available Jan. 1.
"I really think people just didn't know about it," Oltz said. "And then it came online."
Still, she said, the risk is relatively low, and she doesn't expect any legal action because of the policy change. For that to happen, a plaintiff would have to prove that harm was done and that their information could not have been obtained elsewhere. With the small timeframe that the information was available online and considering the fact that all the information has been available at North Dakota courthouses, that would be difficult to prove, Oltz said.
The most glaring flaw is the possibility for human error, since the system relies on attorneys to redact all sensitive information from documents before they're filed, according to Oltz, who said one potential solution to that problem would be using software that automatically redacts documents, but that software isn't being used by any other states yet and has not been tested in North Dakota.
She also said the program could benefit from a registration system to make it easier to track who's viewing which documents. Another potential solution would be attaching a small fee to viewing documents online that would be small enough not to be a burden for people who need to see the documents, but enough to deter people who would otherwise look at documents just out of curiosity.
That's the system used by PACER, the program used by the federal court system which charges users $0.10 per page to view court documents.
Whatever solution the court pursues as it works to increase transparency, Oltz said she believes it will be a while before the public can view the documents online again.
"I think they're going to have to go back to the drawing board and take a look at these security measures," she said. "If I had to guess, I think they will make changes to their policy, and they will not put everything back online."