Matter of Rules for Public Access T

IN THE SUPREME COURT OF THE STATE OF MONTANA

No. AF 06-0377

____________________

IN THE MATTER OF RULES FOR ) ORDER
PUBLIC ACCESS TO COURT RECORDS )
_____________________

In November 2005, the Supreme Court’s Commission on Technology

established a task force to develop and to recommend to the Court comprehensive

rules to govern electronic access to court records. The task force was instructed to

develop their recommendations within the context of the Public’s Right to Know

and the Right of Individual Privacy, guaranteed, respectively, by Article II,

Sections 9 and 10 of the Montana Constitution. The task force was co-chaired by

Judy Meadows, State Law Librarian, and Karen Nelson, Director of Information

Technology for this Court, and included representatives from the District Courts

and Courts of Limited Jurisdiction, and the Clerks of Courts thereof; from the

Clerk of the Supreme Court; from the media; from the State Bar of Montana; and

from the Montana Advocacy Program.

Following a series of public meetings between December 2005 and March

2006, the task force drafted comprehensive rules modeled on national guidelines

published in October 2002 by the National Center for State Courts and the Justice

Management Institute. The rules which the task force drafted and recommended,

however, were in some cases modified to comply with Article II, Sections 9

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and 10 of the Montana Constitution as well as with Montana statutory law and

jurisprudence. The task force also drafted a detailed commentary to each rule

reflecting the rationale underlying the rule.

At its May 15, 2006 meeting, the Commission on Technology unanimously

voted to recommend to this Court the proposed rules hereinafter referred to.

The Court expresses its appreciation and gratitude to the co-chairpersons

and to the members of the task force for their exhaustive and diligent work on this

matter and for their service to the courts and to the State of Montana.

Having now reviewed these rules and commentary, we determine that

before taking further action, the rules and commentary should be submitted to the

public for comment.

Therefore,

IT IS ORDERED that the rules referred to hereafter by hyperlink be

submitted to the public for comment. All comments must be filed in writing with

the Clerk of the Supreme Court, P.O. Box 203003, Helena, MT, 59620-3003, on

or before 5:00 PM, August 23, 2006.

IT IS FURTHER ORDERED that this Order and these rules, along with the

commentary, be published on the Montana Courts website at

http://www.courts.mt.gov/supreme/proprules.asp , and for the State Bar of

Montana at, http://www.montanabar.org/ . Persons unable to access these

documents electronically may request a paper copy of the same through the State

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Law Librarian, P.O. Box 203004, Helena, MT, 59620-3004 (406-444-1977) upon

advance payment of reasonable photocopying and postage charges.

IT IS FURTHER ORDERED that notice of this Order be served by the

Clerk of this Court either electronically or by mail on the following persons and

organizations:

the Clerk of each District Court of the State of Montana, with the request
that the Clerk serve each District Court Judge in that Clerk’s respective
county;

the Judge of the Workers’ Compensation Court;

the Chief Judge of the Water Court;

the Supreme Court Administrator, who shall serve each of the Judges of the
Courts of Limited Jurisdiction and each juvenile probation officer;

the Attorney General for the State of Montana, with the request that he
serve each law enforcement agency or organization that he deems
appropriate;

the chairperson of the Commission on Courts of Limited Jurisdiction;

the Presidents of the Montana Judges’ Association and the Montana
Magistrates’ Association;

the Presidents of the Clerk of Court’s Association for the Clerks of the
District Courts and the Clerks of the Courts of Limited Jurisdiction;

the Directors of the following Departments, with the request that they serve
the appropriate persons within their Departments: Administration; Auditor;
Corrections; Fish, Wildlife and Parks; Justice; Livestock; Public Health and
Human Services; Public Instruction; and Transportation;

the State Appellate Defender and Chief Public Defender;

the Chairperson of the Public Service Commission;

the Legislative Counsel;

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the President of the University System; the Dean of the University of
Montana School of Law; and the Commissioner of Higher Education, with
the request that they serve the appropriate persons within their institutions;

the Executive Director of the State Bar of Montana, with the request that he
serve appropriate persons and committees within that organization and that
a copy of this Order be published in the next available issue of The
Montana Lawyer;

task force member Ian Marquand, with the request that he serve appropriate
persons, associations and organizations within the print and broadcast
media and the Freedom of Information Hotline. It is the Court’s hope that
the print and broadcast media will give appropriate coverage to this matter
and will publicize the hyperlinks where interested persons may review the
rules and commentary; and

task force member Beth Brenneman on behalf of the Montana Advocacy
Program.

Dated this 23rd day of May, 2006.

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JIM RICE

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 Draft-Model Access Rules with Commentary

Model Access Rules with Commentary
-Draft-
Privacy and Access Task Force
TABLE OF CONTENTS

PURPOSE ............................................................................................................................3

SECTION 1.00 – PURPOSE OF THE RULES .................................................................3

WHO HAS ACCESS ...........................................................................................................7

SECTION 2.00 – WHO HAS ACCESS UNDER THE RULES .......................................7

ACCESS TO WHAT ...........................................................................................................9

SECTION 3.00 – DEFINITIONS ......................................................................................9

SECTION 3.10 – DEFINITION OF COURT RECORD ..................................................9

SECTION 3.20 – DEFINITION OF PUBLIC ACCESS ................................................. 11

SECTION 3.30 – DEFINITION OF REMOTE ACCESS ............................................... 12

SECTION 3.40 – DEFINITION OF “IN ELECTRONIC FORM” ................................. 13

SECTION 4.00 – APPLICABILITY OF THE RULES ................................................... 15

SECTION 4.10 – GENERAL ACCESS RULE ............................................................... 15

SECTION 4.20 – COURT RECORDS IN ELECTRONIC FORM PRESUMPTIVELY
SUBJECT TO REMOTE ACCESS BY THE PUBLIC .................................................. 17

SECTION 4.30 – REQUESTS FOR BULK DISTRIBUTION OF COURT
RECORDS ....................................................................................................................... 19

SECTION 4.40 – ACCESS TO COMPILED INFORMATION FROM COURT
RECORDS ....................................................................................................................... 21

SECTION 4.50 – COURT RECORDS EXCLUDED FROM PUBLIC ACCESS ........ .24

SECTION 4.60 – REQUESTS TO PROHIBIT PUBLIC ACCESS TO
INFORMATION IN COURT RECORDS OR TO OBTAIN ACCESS TO
RESTRICTED INFORMATION ................................................................................... 32

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 Draft-Model Access Rules with Commentary

Model Access Rules with Commentary
- Draft –
Privacy and Access Task Force

WHEN ACCESSIBLE .................................................................................................... 37

SECTION 5.00 – WHEN COURT RECORDS MAY BE ACCESSED ....................... 37

FEES ................................................................................................................................. 38

SECTION 6.00 - FEES FOR ACCESS ..........................................................................38

SECTION 7.00 – OBLIGATION OF VENDORS PROVIDING INFORMATION
TECHNOLOGY SUPPORT TO A COURT TO MAINTAIN COURT RECORDS......39

OBLIGATION OF THE COURT TO INFORM AND EDUCATE ............................40

SECTION 8.00 – INFORMATION AND EDUCATION REGARDING ACCESS
RULES .............................................................................................................................40

SECTION 8.10 – DISSEMINATION OF INFORMATION TO LITIGANTS
ABOUT ACCESS TO INFORMATION IN COURT RECORDS ................................ 40

SECTION 8.20 – DISSEMINATION OF INFORMATION TO THE PUBLIC
ABOUT ACCESSING COURT RECORDS ..................................................................42

SECTION 8.30 – EDUCATION OF JUDGES AND COURT PERSONNEL ABOUT
THE ACCESS RULES ...................................................................................................42

SECTION 8.40 – EDUCATION ABOUT PROCESS TO CHANGE INACCURATE
INFORMATION IN A COURT RECORD ....................................................................43

SECTION 8.50 – PROCEDURE TO CORRECT, EXPUNGE, OR UPDATE
INACCURATE INFORMATION ..................................................................................43

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Purpose

Section 1.00 - Purpose of these Rules

(a) The purpose of these rules is to provide a comprehensive framework for a policy on
public access to court records. These rules provide for access in a manner that:

(1) Maximizes accessibility to court records,
(2) Supports the role of the judiciary,
(3) Promotes governmental accountability,
(4) Contributes to public safety,
(5) Minimizes risk of injury to individuals,
(6) Protects individual privacy rights and interests,
(7) Protects proprietary business information,
(8) Minimizes reluctance to use the court to resolve disputes,
(9) Makes most effective use of court and clerk of court staff,
(10) Provides excellent customer service, and
(11) Does not unduly burden the ongoing business of the judiciary.

The rules are intended for 1) litigants, 2) those seeking access to court records, and 3) judges and
court and clerk of court personnel responding to requests for access.

Task Force Commentary and Selected Text from CCJ/COSCA Guidelines for Public
Access to Court Records

The objective of these rules is to provide maximum public accessibility to court records,
consistent with constitutional or other provisions of law and taking into account public policy
interests that are not always fully compatible with unrestricted access. Eleven significant public
policy interests are identified. Unrestricted access to certain information in court records could
result in an unwarranted invasion of personal privacy or unduly increase the risk of injury to
individuals and businesses. Denial of access would compromise the judiciary’s role in society,
inhibit accountability, and might endanger public safety.

These rules start from the presumption of open public access to court records. In some
circumstances, however, the right to privacy may require that access to some records is
restricted. The rules reflect the view that any restriction to access must be implemented in a
manner narrowly tailored to serve the interests in open access. The premise underlying these
rules is that court records are open and accessible to the public. Open access serves many public
purposes. Open access supports the judiciary in fulfilling its role in our democratic form of
government and in our society. Open access also promotes the accountability of the judiciary by
readily allowing the public to monitor the performance of the judiciary.

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Section 1.00 (Commentary, cont.)

Other specific benefits of open court records are further elaborated in the remaining subsections.

Subsection (a)(2) Supports the Role of the Judiciary. The role of the judiciary is to resolve
disputes, between private parties or between an individual or entity and the government,
according to a set of rules. Although the dispute is between two people or entities, or with the
government, having the process and result open to the public serves a societal interest in having a
set of stable, predictable rules governing behavior and conduct. The open nature of court
proceedings furthers the goal of providing public education about the results in cases and the
evidence supporting them. Another aspect of the court’s dispute resolution function is
establishing rights as between parties in a dispute. The decision of the court stating what the
rights and obligations of the parties are is as important to the public as to the litigants. The
significance of this role is reflected in statutes and rules creating such things as judgment rolls
and party indices with specific public accessibility.

Subsection (a)(3) Promotes Government Accountability. Open court records provide for
accountability in at least three major areas: 1) the operations of the judiciary, 2) the operations of
other governmental agencies, and 3) the enforcement of laws. Open court records allow the
public to monitor the performance of the judiciary and, thereby, hold it accountable. Public
access to court records allows anyone to review the proceedings and the decisions of the court,
individually, across cases, and across courts, to determine whether the court is meeting its role of
protecting the rule of law, and does so in a cost effective manner. Such access also promotes
greater public trust and confidence in the judiciary. Openness also provides accountability for
governmental agencies that are parties in court actions, or whose activities are being challenged
in a court action. Finally, open court proceedings and open court records also demonstrate that
laws are being enforced. This includes civil regulatory laws as well as criminal laws.

Subsection (a)(4) Contributes to Public Safety. Open public access contributes to public safety
and compliance with the law. Availability of information about court proceedings and outcomes
allows people to become aware of individuals, circumstances or business propositions that may
pose a threat to their persons or their property. Open public access to information thus allows
people to protect themselves. Examples of this are criminal conviction information, protective
order information, and judgments in non-criminal cases. At the same time however, an effort
should be made to alert the public of the potentially serious problems that could be brought about
by the reliance upon incomplete information from yet unresolved cases, where allegations have
not been proven.

Public safety, physical and economic, is also enhanced to the extent open public access to court
records contributes to the accountability of corporations, businesses and individuals. Court cases
are one source of information about unsafe products, improper business practices or dangerous
conditions. Knowing this information is readily available to the public from court records is one
incentive for businesses and individuals to act

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Section 1.00 (Commentary, cont.)

appropriately. Open access to this information also allows individuals and businesses to better
protect themselves from injury.

Subsection (a)(5) Minimizes Risk of Injury to Individuals. Other circumstances suggest
unrestricted access is not always in the public interest. The interest in personal safety can be
served by restricting access to information that someone could use to injure someone else,
physically, psychologically or economically. Examples of actual injury to individuals based on
information obtained from court records include: intimidation of, or physical violence towards,
victims, witnesses, or jurors, repeated domestic violence, sexual assault, stalking, identity theft,
and housing or employment discrimination. While this does not require total restriction of access
to court records, it supports restriction of access to certain information that would allow someone
to identify and find a person to whom they intend harm. This is an especially serious problem in
domestic violence cases where the abused person is seeking protection through the court.

Subsection (a)(6) Protects Individual Privacy Rights and Interests. The countervailing public
interest to open public access is the protection of personal privacy. The interest in privacy is
protected by limiting public access to certain kinds of information. The presumption of public
access is not absolute. Considerations identified regarding privacy interests include: a specific,
legally protected privacy interest, the reasonableness (personally and objectively) of the
expectation of privacy, the seriousness of the invasion of privacy, and the legitimate public
interest in disclosure. Appropriate respect for individual privacy also enhances public trust and
confidence in the judiciary. It is also important to remember that, generally, at least some of the
parties in a court case are not in court voluntarily, but rather have been brought into court by
plaintiffs or by the government. They have not consented to personal information related to the
dispute being in the public domain. For those who have violated the law or an agreement, civilly
or criminally, an argument can be made that they have impliedly consented to participation and
disclosure by their actions. However, both civil suits and criminal cases are filed based on
allegations, so it cannot be presumed that individuals who find themselves in court as a
defendant in a case have acted improperly or wrongly as alleged by plaintiffs or by the
government.

For those who have not been charged with violation of the law, civilly or criminally, but are
subject to protective actions initiated by the government, such as those subject to involuntary
commitments, guardianship or conservatorship proceedings, implied consent to participation and
disclosure could not be similarly argued.

Finally, at times a person who is not a party to the action may be mentioned in the court record.
Care should be taken that the privacy rights and interests of such a ‘third’ person, such as a
minor involved in child protective proceedings, is not unduly compromised by public access to
the court record containing information about the person.

Subsection (a)(7) Protects Proprietary Business Information. Another type of information to
which access may be restricted is that related to the operations of a business. There may be a
compelling reason to protect trade secrets or other proprietary business information in a
particular case. Allowing public access to such information could both

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Section 1.00 (Commentary, cont.)

thwart a legitimate business advantage and give a competitor an unfair business
advantage. It also reduces the willingness of a business to use the courts to resolve disputes.

Subsection (a)(8) Minimizes Reluctance To Use The Court To Resolve Disputes. The public
availability of information in the court record can also affect the decision as to whether to use the
court to resolve disputes. A policy that permits unfettered public access might result in some
individuals avoiding the resolution of a dispute through the court because they are unwilling to
have information become accessible to the public simply by virtue of it being in the court record.
This would diminish access to the courts and undermine public confidence in the judiciary.
There may also be an unintended effect of encouraging use of alternative dispute resolution
mechanisms, which tend to be essentially private proceedings. If someone believes the courts are
not available to help resolve their dispute, there is a risk they will resort to self-help, a response
the existence of the courts is intended to minimize because of the societal interest in the peaceful
resolution of disputes.

Subsection (a)(9) Makes Most Effective Use of Court and Clerk of Court Staff. This
consideration relates to how access is provided rather than whether there is access. Staff time is
required to maintain and provide public access to court records. If records are in electronic form,
less staff time may be needed to provide public access. However, there can be significant costs to
convert records to electronic form in the first place and to maintain them. There may also be
added costs for court personnel needed to provide appropriate security for court databases and to
prevent hackers from improperly accessing and altering court databases. These additional staff
costs may at least partially offset any savings from improvements in workflow or from less use
of staff time to respond to records requests. In providing public access the court and clerk should
be mindful of doing it in a way that makes most effective use of court and clerk of court staff.
Use of staff may also be a relevant consideration in identifying the method for limiting access
under section 4.60(a). Note that the rule does not require a court to convert records to electronic
form, nor to make electronic records available remotely.

The design of electronic databases used by the court is also relevant here. Court records
management systems should be designed to improve public access to the court record as well as
to improve the productivity of the court’s employees and judges and the clerk’s office. What is
the added cost of providing both? The answer to this involves allocation of scarce resources as
well as system design issues. If the public can help themselves to access, especially
electronically, less staff time is needed to respond to requests for access. The best options would
be to design a system to accommodate access restrictions to certain kinds of information without
court staff involvement (see discussion in Commentary to Section 3.20).

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Section 1.00 (Commentary, cont.)

Subsection (a)(10) Provides Excellent Customer Service. An access rule should also support
excellent customer service while conserving court resources, particular court staff. Having
information in electronic form offers more opportunities for easier, less costly access to anyone
interested in the information. This consideration relates to how access is provided rather than
whether there is access.

Subsection (a)(11) Does Not Unduly Burden The Ongoing Business Of The Judiciary. Finally,
an access rule and its implementation should not unduly burden the court in delivering its
fundamental service – resolution of disputes. This consideration relates to how access is provided
rather than whether there is access. Depending on the manner of public access, unrestricted
public access could impinge on the day-to-day operations of the court. This subsection relates
more to requests for bulk access (see section 4.30) or for compiled information (see section 4.40)
than to the day-to-day, one at a time requests (see section 1.00, subdivision (a)(9)). Limited
public resources and high case volume also suggest that courts should not add to their current
information burden by collecting information not needed for immediate judicial decisions, even
if the collection of this information facilitates subsequent use of the collected information.
Making information available in electronic form, and making it remotely accessible, requires
both staff and equipment resources. Courts receive a large volume of documents and other
materials daily, and converting them to electronic form may be expensive. As is the case with all
public institutions courts have limited resources to perform their work. The interest stated in this
subsection attempts to recognize that access is not free, that there may be more than one
approach to providing, or restricting access, and some approaches are less burdensome than
others.

Who Has Access
Section 2.00 – Who Has Access under these Rules

Every member of the public will have the same access to court records as provided in these rules,
subject to the provisions of section 4.30(b) and 4.40(c).

In the official performance of their duties, the following people or entities, because of their
employment or relationship to the court, shall not have their access restricted under Sections 4.0
through 4.6:

(a) court or clerk of court employees;
(b) people or entities, private or governmental, who assist the court in providing
court services;
(c) agencies whose access to court records is defined by another statute, rule, order
or policy, and
(d) the parties to a case or their lawyers regarding access to the court record in their
case.

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Section 2.00 (Commentary)

Public Access to Court Records

The point of this section is to explicitly state that access is the same for the general public, the
media, and the information industry. Access does not depend on who is seeking access, the
reason they want the information or what they are doing with it. The section also indicates what
groups of people are not subject to access restrictions under these rules.

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Access to What

Access to What
Section 3.00 – Definitions
Section 3.10 – Definition of Court Record

For purposes of these rules:

(a) “Court record” includes:

(1) Any document, information, or other thing that is collected, received, or
maintained by a court or clerk of court in connection with a judicial
proceeding;

(2) Any index, calendar, docket, register of actions, official record of the
proceedings, order, decree, judgment, minute, and any information in a
case management system created by or prepared by the court or clerk of
court that is related to a judicial proceeding; and

(3) Information maintained by the court or clerk of court pertaining to the
administration of the court or clerk of court office and not associated with
any particular case.

(b) “Court record” does not include:

(1) Other non-court records maintained by the public official who also serves
as clerk of court.

(2) Information gathered, maintained or stored by a governmental agency or
other entity to which the court has access but which is not part of the court
record as defined in section 3.10(a)(1).

Task Force Commentary and Selected Text from CCJ/COSCA Guidelines for
Public Access to Court Records

This section defines the court record broadly. Three categories of information are
identified. First are the documents, etc., that constitute what is classically called the case
file. The second category is information that is created by the court, some of which
becomes part of the court file, but some resides only in documents or databases that are
not in a case file. The third category is information that relates to the operation of the
court, but not to a specific case or cases. The definition addresses the content of a court
record, not whether the information is accessible to the public. Limitations and exclusions
to access are provided for in sections 4.50 and 4.60.

The rules are intended to apply to every court record, regardless of the manner in which it
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Access to What

Section 3.10 (Commentary, cont.)

was created, the form(s) in which it is stored, or other form(s) in which the information
may exist (see section 4.00).

Subsection (a)(1): This definition is meant to be all inclusive of information that is
provided to, or made available to, the court that relates to a judicial proceeding. The term
“judicial proceeding” is used because there may not be a court case in every situation.
The definition is not limited to information “filed” with the court or “made part of the
court record” because some types of information the court needs to make a fully informed
decision may not be “filed” or technically part of the court record. The language is,
therefore, written to include information delivered to, or “lodged” with, the court, even if
it is not “filed.” An example is a complaint accompanying a motion to waive the filing
fee based on indigency. The definition is also intended to include exhibits offered in
hearings or trials, even if not admitted into evidence. The definition includes all
information used by a court to make its decision, even if an appellate court subsequently
rules that the information should not have been considered or was not relevant to the
judicial decision made. In order for a court to be held accountable for its decisions all of
the information that a court considered and which formed the basis of the court’s decision
must be accessible to the public. The language is intended to include within its scope
materials that are submitted to the court, but upon which a court did not act because the
matter was withdrawn or the case was resolved or, settled, by the parties. Once relevant
material has been submitted to the court, it does not become inaccessible because the
court did not, in the end, act on the information in the materials because the parties
resolved the issue without a court decision.

Subsection (a)(2): The definition is written to cover any information that relates to a
judicial proceeding generated by the court itself, whether through the court
administrator’s personnel or the clerk’s office personnel. This definition applies to
proceedings conducted by temporary judges or referees hearing cases in an official
capacity. This includes two categories of information. One category includes documents,
such as notices, minutes, orders and judgments, which become part of the court record.
The second category includes information that is gathered, generated, or kept for the
purpose of managing the court’s cases. This information may never be in a document; it
may only exist as information in a field of a database such as a case management system,
an automated register of actions, or an index of cases or parties.

Subsection (a)(3): The definition of court record includes some information and records
maintained by the court and clerk of court that is related to the management and
administration of the court or the clerk’s office, as opposed to a specific case. Examples
of this category of information include: internal court policies, memoranda and
correspondence, court budget and fiscal records, and other routinely produced
administrative records, memos and reports, and meeting minutes. The Commentary to
subsection 4.60(b) discusses restriction of access to drafts and work products related to
court administration or clerk’s office administration.

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Access to What

Section 3.10 (Commentary, cont.)

Subsection (b)(1): This subsection makes it clear that the rules apply only to information
related to court judicial proceedings. The types of information described are not court
records, nor is the court responsible for their collection, maintenance, or accessibility. If
the official who also serves as clerk of court has responsibilities for other information and
records, for example records maintained as clerk and recorder, which do not relate to
specific judicial proceedings, these rules do not apply to these records. The laws and
access policies of the agency responsible for gathering and maintaining the information
govern access to such information.

Subsection (b)(2): The definition excludes information gathered, maintained or stored by
other agencies or entities that is not necessary to, or is not part of the basis of, a court’s
decision or the judicial process. Access to this information should be governed by the
laws and access policy of the agency collecting and maintaining such information. The
ability of a computer in a court or clerk’s office to access the information because the
computer uses shared software and databases should not, by itself, make the court records
access rules applicable to the information. An example of this is information stored in an
integrated criminal justice information system where all data is shared by law
enforcement, the prosecutor, the court, defense counsel, and probation and corrections
departments. The use of a shared system can blur the distinctions between agency records
and court records. Under this section, if the information is provided to the court as part of
a case or judicial proceeding, the court’s access rules then apply, regardless of where the
information came from or the access rules of that agency. Conversely, if the information
is not made part of the court record, the access policy applicable to the agency collecting
the data still applies even if the information is stored in a shared database.

Section 3.20 – Definition of Public Access

“Public access” means that the public may inspect and obtain a copy of the information in
a court record as provided by Montana law.

Task Force Commentary and Selected Text from CCJ/COSCA Guidelines for
Public Access to Court Records

This section defines “public access” very broadly. The unrestricted language implies that
access is not conditioned on the reason access is requested or on prior permission being
granted by the court. Access is defined to include the ability to obtain a copy of the
information, not just inspect it. The section does not address the form of the copy as
there are numerous forms the copy could take, and more will probably become possible
as technology continues to evolve.

At a minimum inspection of the court record can be done at the courthouse where the
record is maintained. It can also be done in any other manner determined by the court
that makes the most effective use of court staff, provides quality customer service and is
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Access to What

Section 3.20 (Commentary, cont.)

least disruptive to the operations of the court – that is, consistent with the principles and
interests specified in section 1.00. The inspection can be of the physical record or an
electronic version of the court record. Access may be over the counter, by fax, by
regular mail, by e-mail or by courier. The section does not preclude the court from
making inspection possible via electronic means or other sites, or remotely. It also
permits a court to satisfy the request to inspect by providing a printed report, computer
disk, tape or other storage medium containing the information requested from the court
record. The issue of the cost, if any, must be paid before obtaining a copy is addressed in
section 6.0.

The section implies an equality of the ability to “inspect and obtain a copy” across the
public. Implementing this equality will require the court to address several sources of
inequality of access. Some people have physical impairments that prevent them from
using the form of access available to most of the public. The Americans with Disabilities
Act may require the court or clerk to provide information in a form that is usable to
someone with a disability. Another problem has to do with the existence of a ‘digital
divide’ regarding access to information in electronic form. The court should provide
equivalent access to those who do not have the necessary electronic equipment to obtain
access. Finally, there is the issue of the format of electronic information and whether it is
equally accessible to all computer platforms and operating systems. The court should
make electronic information equally available, regardless of the computer used to access
the information (in other words, in a manner that is hardware and software independent).

Another aspect of access is the need to redact restricted information in documents before
allowing access to the balance of the document (see section 4.60 (a) and associated
commentary). In some circumstances this may be quite costly. Lack of, or insufficient,
resources may present the court with an awkward choice of deciding between funding
normal operations and funding activities related to access to court records. As
technology improves it is becoming easier to develop software that allows redaction of
pieces of information in documents in electronic form based on “tags” (such as XML
tags) accompanying the information. When software to include such tags in documents
becomes available and court systems acquire the capability to use the tags, redaction will
become more feasible, allowing the balance of a document to be accessible with little
effort on the part of the court.

Section 3.30 – Definition of Remote Access

“Remote access” means the ability to electronically search, inspect, or copy information
in a court record without the need to physically visit the court facility where the court
record is maintained.

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Section 3.30 (Commentary )

Task Force Commentary and Selected Text from CCJ/COSCA Guidelines for
Public Access to Court Records

The objective of defining the term “remote access” in Section 3.30 is to describe a means
of access that is technology neutral. The term is used in section 4.20 regarding
information that should be remotely accessible. The key elements are that: 1) the access
is electronic, 2) the electronic form of the access allows searching of records, as well as
viewing and making an electronic copy of the information, 3) a person is not required to
visit the courthouse to access the record, and 4) no assistance of court or clerk of court
staff is needed to gain access (other than staff maintaining the information technology
systems). This definition provides a term that is independent of any particular technology
or means of access, for example, the Internet or a dial-up system such as the federal
court’s PACER1 system. Remote access may be accomplished electronically by any one
or more of a number of existing technologies, including dedicated terminal, kiosk, dial-in
service, or Internet site. Attaching electronic copies of information to e-mails, and
mailing or faxing copies of documents in response to a letter or phone request for
information would not constitute remote access under this definition.

Section 3.40 – Definition of “In Electronic Form”

Information in a court record that is defined in Section 3.10 includes: (a) electronic
representations of text or graphic documents; (b) an electronic image, including a video
image, of a document, exhibit or other thing; (c) data in the fields or files of an electronic
database; or (d) an audio or video recording, analog or digital, of an event or notes in an
electronic file from which a transcript of an event can be prepared.

Task Force Commentary and Selected Text from CCJ/COSCA Guidelines for
Public Access to Court Records

The breadth of the definition of “in electronic form” makes clear that the rule applies to
information that is available in any type of electronic form. The point of this section is to
define what “in electronic form” means, not to define whether electronic information can
be accessed or how it is accessed.

1
PACER (Public Access to Court Electronic Records) is the automated case management
information system used by the federal courts to provide information about court cases
that can be accessed remotely by a subscriber.

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Section 3.40 (Commentary, cont.)

Subsection (a): This subsection refers to electronic versions of textual documents (for
example documents produced on a word processor, or stored in some other text format
such as PDF format), and pictures, charts, or other graphical representations of
information (for example, graphics files, spreadsheet files, etc.).

Subsection (b): A document might be electronically available as an image of a paper
document produced by scanning, or another imaging technique (but not filming or
microfilming). This document can be viewed on a screen and it appears as a readable
document, but it is not searchable without the aid of OCR (optical character recognition)
applications that translate the image into a searchable text format. An electronic image
may also be one produced of a document or other object through the use of a digital
camera, for example in a courtroom as part of an evidence presentation system.

Subsection (c): Montana courts are increasingly using case management systems, data
warehouses or similar tools to maintain data about cases and court activities. The rule
applies equally to this information even though it is not produced or available in paper
format unless a report containing the information is generated. This section, as well as
subsection (a), would also cover files created for, and transmitted through, an electronic
filing system for court documents.

Subsection (d): Evidence can be in the form of audio or videotapes of testimony or
events. In addition audio and video recording, electronic recording and computer-aided
transcription systems (CAT) using court reporters are increasingly being used to capture
the verbatim record of court hearings and trials.

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Section 4.00 – Applicability of the Rules

These rules apply to all court records, regardless of the physical form of the court record,
the method of recording the information in the court record or the method of storage of
the information in the court record.

Task Force Commentary and Selected Text from CCJ/COSCA Guidelines for
Public Access to Court Records

The objective of this section is to make it clear that the rules apply to information in the
court record regardless of the form in which the information was created or submitted to
the court, the means of gathering, storing or presenting the information, or the form in
which it is maintained. Section 3.10 defines what is considered to be part of the court
record. However, the materials that are contained in the court record come from a variety
of sources. The materials are offered and kept in a variety of forms. Information in
electronic form exists in a variety of formats and databases and can be accessed by a
variety of software programs. To support the general principle of open access, the
application of the policy must be independent of technology, format and software and,
instead, focus on the information itself.

Overview of Section 4.00 Provisions

Three categories of information accessibility are created in the following sections of the
rules. The first reflects the general principle that information in court records is generally
presumed to be accessible (section 4.10). Second, there is a section that indicates what
information should be accessible remotely (section 4.20). Following these provisions are
sections on bulk release of electronic information (section 4.30) and release of compiled
information (section 4.40). A fifth category identifies information prohibited from public
access because of overriding privacy or other interests (section 4.50). Finally, having
defined what information is accessible and not accessible, there is a section that indicates
how to request the prohibition of access to information generally accessible, and how to
gain access to information to which public access is prohibited (section 4.60).

Section 4.10 – General Access Rule

(a) Information in the court record is accessible to the public except as prohibited by
section 4.50 or section 4.60(a).

(b) There shall be a publicly accessible indication of the existence of information in a
court record to which access has been prohibited, which indication shall not
disclose the content of the information protected.

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Section 4.10 (Cont.)

(c) A local court may not adopt a more restrictive access policy or otherwise
restrict access beyond that provided for in these rules, nor provide greater access
than that provided for in these rules.

Task Force Commentary and Selected Text from CCJ/COSCA Guidelines for
Public Access to Court Records

Subsection (a) states the general premise that information in the court record will be
publicly accessible unless access is specifically prohibited. There are two exceptions
noted. One exception is information in the court record that is specifically excluded from
public access by section 4.50. The second exception provides for those individual
situations where the court orders a part of the record to be restricted from access pursuant
to the procedure set forth in section 4.60(a).

The provision does not require any particular level of access, nor does it require a court to
provide access in any particular form, for example, publishing court records in electronic
form on a web site or dial-in database. (See section 4.20 on information that a court
should make available remotely.)

The provision, by omission, reiterates the concept noted in the commentary to section
2.00 that access is not conditioned on proper use, nor is the burden on requestors to show
they are entitled to access. Subsection (b) provides a way for the public to know that
information exists even though public access to the information itself is prohibited. This
allows a member of the public to request access to the restricted record under section
4.60(b), which they would not know to do if the existence of the restricted information
was not known. Making the existence of restricted information known enhances the
accountability of the court. Hiding the existence of information not only reduces
accountability, it also erodes public trust and confidence in the judiciary when the
existence of the information becomes known.

In addition to disclosing the existence of information that is not available, there is also a
value in indicating how much information is being withheld. For many redactions this
could be as simple as using “placeholders,” such as gray boxes, when characters or
numbers are redacted, or indicating how many pages have been excluded if part or all of
a document is not accessible. Providing this level of detail about the information
contributes to the transparency and credibility of the restriction process and rules.

There are two situations where this policy presents a dilemma. One is where access is
restricted to an entire document and the other concerns a case where the entire file is
ordered sealed. This section requires the existence of the sealed document or file to be
public. The problem arises where the disclosing of the existence of a document or case
involving a particular person, as opposed to some of the information in the court record,
reveals the very information the restriction order seeks to protect. One example would be

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Section 4.10 (Commentary, cont.)

the title of a document in a register of actions which describes the type or nature of the
information to which access restrictions is being sought. These problems can be avoided,
to some extent, by using a more generic description in the caption of a document, using a
pseudonym, or some other unique identifier instead of the party's full or real name. This
section requires disclosure of the existence of sealed information in the interest of a more
open judicial record.

Section 4.30 (c) is provided for in the rules to promote consistency and predictability
across courts; it also furthers equal access to courts and court records.

Section 4.20 – Court Records In Electronic Form Presumptively Subject to
Remote Access by the Public

The following information in court records should receive the highest priority for remote
access by the public if available in electronic form, unless public access is restricted
pursuant to sections 4.50 or 4.60(a):

a. Litigant/party indexes to cases filed with the court;
b. Listings of new case filings, including the names of the parties;
c. Register of actions showing what documents have been filed in a case;
d. Calendars or dockets of court proceedings, including the case number and
caption, date and time of hearing, and location of hearing;
e. Judgments, orders, or decrees in a case and liens affecting title to real property.

Task Force Commentary and Selected Text from CCJ/COSCA Guidelines for
Public Access to Court Records

Several types of information in court records have traditionally been given wider public
distribution than merely making them publicly accessible at the courthouse. Task force
members agreed that the types of information listed in Section 4.20 should receive the
highest priority for automation and remote access.

The summary or general nature of the information is such that there is little risk of harm
to an individual or unwarranted invasion of privacy or proprietary business interests.

While not every court, or every automated system, is capable of providing this type of
access, courts are encouraged to develop the capability to do so. The listing of
information that should be made remotely available in no way is intended to imply that
other information should not be made remotely available. Some court’s automated
systems may also make more information available remotely to litigants and their lawyers
than is available to the public, but this is outside the scope of these rules.

Making certain types of information remotely accessible allows the court to make cost
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Section 4.20 (Commentary, cont.)

effective use of public resources provided for its operation. If the information is not
available, someone requesting the information will have to call the court or come down to
the courthouse and request the information. Public resources will be consumed with court
staff locating case files containing the record or information, providing it to the requestor,
and returning the case file to the shelf. If the requestor can obtain the information
remotely, without involvement of court staff, there will be less use of court resources.

In implementing this section a court should be mindful about what specific pieces of
information are appropriately remotely accessible. Care should be taken that the release
of information is consistent with all provisions of the access rules, especially regarding
personal identification information. For example, the information remotely accessible
should not include information presumptively excluded from public access pursuant to
section 4.50, prohibited from public access by court order pursuant to 4.60(a).

Subsection (e): One role of the judiciary, in resolving disputes, is to state the respective
rights, obligations and interests of the parties to the dispute. This declaration of rights,
obligations and interests usually is in the form of a judgment or other type of final order.
Judgments or final orders have often had greater public accessibility by a statutory
requirement that they be recorded in a “judgment roll” or some similar practice. One
reason this is done is to simplify public access by placing all such information in one
place, rather than making someone step through numerous individual case files to find
them. Recognizing such practices, the policy specifically encourages this information to
be remotely accessible if in electronic form.

There are circumstances where information about charges and convictions in criminal
cases can change over time, which could mean copies of such listings derived from court
records can become inaccurate unless updated. These circumstances suggest that there be
a disclaimer associated with such information, and that education about these possibilities
be provided to litigants and the public.

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Section 4.30 – Requests for Bulk Distribution of Court Records

Bulk distribution is defined as the distribution of all, or a significant subset, of the
information in court records, as is and without modification or compilation.

(a) Bulk distribution of information in the court record is permitted for court records
that are publicly accessible under section 4.10 and not prohibited by state law.

(b) A request for bulk distribution of information not publicly accessible can be made
to the court where the identification of specific individuals is ancillary to the
purpose of the inquiry. Prior to the release of information pursuant to this
subsection the requestor must comply with the provisions of section 4.40(c).

Task Force Commentary and Selected Text from CCJ/COSCA Guidelines for
Public Access to Court Records

This section addresses requests for large volumes of information in court records, as
opposed to requesting information from a particular case or reformulated information
from several cases (see section 4.40). The section authorizes bulk distribution for
information that is publicly accessible. It also sets out a method of requesting bulk
distribution of information to which public access is restricted.

There are advantages to allowing bulk access to court records. Allowing the public to
obtain information from court records from a third party may reduce the number of
requests to the court for the records. Fewer requests mean less court staff resources
devoted to answering inquiries and requests. However, there are costs associated with
making the records available. There may also be technology, as well as cost, issues in
providing bulk distribution of information. For example, a court’s systems may not be
able to identify and separate publicly accessible information from restricted information
in creating a copy of information for bulk distribution. Permitting bulk distribution of
information in this circumstance assumes providing the data will not interfere with the
normal operations of the court. There is also the ‘cost’ of reduced public confidence in
the judiciary from the existence of inaccurate, stale or incorrectly linked information
available through third parties but derived from court records.

In allowing bulk data to be disseminated a court should be mindful not to gather
information that it does not need to fulfill its judicial role, even if those requesting bulk
information are interested in obtaining this information.

Subsection (a). Bulk transfer is allowed for information that is publicly accessible under
these rules, however, task force members noted that § 2-6-109, MCA prohibits public
agencies from distributing or selling for use as a mailing list any list of persons without
first securing the permission of those on the list; and that a list of persons prepared by the
agency may not be used as a mailing list except by the agency or another agency without
first securing the permission of those on the list. There is no constitutional or other basis

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Section 4.30 (Commentary, cont.)

for providing greater access to bulk requestors than to the public generally, and this
section implies there should be no less access. Consistent with section 3.20, public
access, including bulk access, is not dependent upon the reason the access is sought or the
proposed use of the data. Court information provided through bulk distribution can be
combined with information from other sources. Information from court records may be
linked with other information and may be used for purposes that are unrelated to why the
information was provided to the court in the first place. It is significant to note that
transferring information in the court record into databases that are then beyond the
court’s control creates the very real likelihood that the information will, over time,
become incomplete, inaccurate, stale or contain information that has been removed from
the court’s records. Keeping information distributed in bulk current may require the court
to provide “refreshed” information on a frequent, regular and periodic basis. This may
raise issues of availability of court resources to do this. Although creating liability or
penalties on the third party information provider might reduce the risk of stale or
incorrect information being distributed, meeting this standard still requires the court to
provide updated and new information on a frequent basis.

A particular problem with bulk distribution of criminal conviction information has to do
with expungement policies. If the intent of an expungement policy is to “erase” a
conviction, the public policy may be impossible to implement if the information is
already in another database as a result of a bulk transfer of the information. An approach
needs to be devised that accommodates expungement and bulk distribution. Potential
mass access to electronic court information further highlights the question of the accuracy
of the court’s records. This is particularly important for databases created by court or
clerk of court employees. The potential for bulk distribution of the information in a court
database will require courts and clerks to be even more vigilant about both the accuracy
of their databases and the timeliness of entering information into them.

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Section 4.40 – Access to Compiled Information from Court Records

(a) Compiled information is defined as information that is derived from the selection,
aggregation or reformulation by the court of some of the information from more
than one individual court record.

(b) Any member of the public may request compiled information that consists solely
of information that is publicly accessible and that is not already available pursuant
to section 4.20 or in an existing report. The court shall compile and provide the
information if it determines that the resources are available to compile the
information. The court may delegate to its staff or the clerk of court the authority
to make the initial determination as to whether to provide compiled information.

(c) Compiled information that includes information to which public access has been
restricted may be requested by any member of the public pursuant to Section 4.6.

The request shall:

1) identify what information is sought,
2) explain provisions for the secure protection of any information requested to
which public access is restricted or prohibited.
3) if the request is granted, the court may require the requestor to sign a
declaration that:

i. The data will not be sold or otherwise distributed, directly or
indirectly, to third parties, except for journalistic purposes,

ii. The information will not be used directly or indirectly to sell a product
or service to an individual or the general public, except for journalistic
purposes, and/ or

iii. The court may make such additional orders as may be needed to
protect information to which access has been restricted or prohibited.

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Section 4.40

Task Force Commentary and Selected Text from CCJ/COSCA Guidelines for
Public Access to Court Records

This section authorizes access to compiled information. The section describes how the
compiled information is requested, the requirements for obtaining compiled information,
and possible limitations on using the information.

The primary interests served by release of compiled information are supporting the role
of the judiciary, promoting the accountability of the judiciary, and providing public
education regarding the judiciary. Compiled data allows analysis and comparison of court
decisions across cases, across judges and across courts. This information can also educate
the public about the judicial process. It can provide guidance to individuals in the conduct
of their everyday life and business. Although some judges may have legitimate concerns
about misuse of compiled data, for example in comparing the decisions of judges, such an
analysis is one approach to monitoring the performance of the judiciary.

Compiled data also allows the study of the effectiveness of the judiciary and the laws
enforced in courts. For example, the studies of delay reduction leading to improved case
management and faster case processing times were based on analysis of compiled data
from thousands of cases in over a hundred courts across the country. In allowing
compiled data to be disseminated a court should be mindful not to gather information that
it does not need to fulfill its judicial role, even if those requesting compiled information
are interested in obtaining this information.

Subsection (a) provides a definition of compiled information. Compiled information is
different from case-by-case access because it involves information from more than one
case. Compiled information is different from bulk access in that it involves only some of
the information from some cases and the information has been reformulated or
aggregated; it is not just a copy of all the information in the court’s records. Essentially
compiled information involves the creation of a new court record. In order to provide
compiled information a court generally must write a computer program to select the
specific cases or information sought in the request, or otherwise use court resources to
identify, gather, and copy the information.

Generating compiled data may require court resources and generating the compiled
information may compete with the normal operations of the court for resources, which
may be a reason for the court not to compile the information. It may be less costly for the
court and less of an impact on the court to, instead, provide bulk distribution of the
requested information pursuant to section 4.30, and let the requestor, rather than the
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Section 4.40 (Commentary, cont.)

court, compile the information.

Subsection (b) addresses requests for information that is publicly available. Since public
resources are used in responding to the request, the question for the court is whether
responding meets criteria established by the court for providing such information, and
whether the court will choose to expend available resources on the request.

The reference in section 4.40(b) to section 4.20 and existing reports is intended to limit
the section’s application to requests for compiled data that are not already routinely
prepared and made public. Party name indices, or a screen that reports the results of a
name search of either civil or criminal cases, are examples of compiled information that
already exist.

Section 4.40(c) addresses requests for information that is not publicly accessible. Since
the information is not publicly accessible, the section provides for protections of the
restricted information.

The exception for “journalistic purposes” in subdivisions 4.40(c) is included as a
recognition that what journalism sells is information, and prohibiting a journalist from
selling the information may defeat the purpose of providing the information to the
journalist in the first place.

Subdivision 4.40(c) further identifies possible provisions for preventing improper
disclosure of restricted or prohibited information. A state or individual court’s policy
might also consider a requirement of a nondisclosure agreement that includes injunctive
relief and indemnities for improper disclosure. In order to get a court order releasing the
information the appropriate nondisclosure agreement must be signed by the requestor.

The enforcement of restrictions on the use or dissemination of information provided
presents additional issues that the courts must address. One option is for courts to refuse
to continue supplying compiled data to a certain organization, or on a certain subject, if
abuses occur. Another option is to create, or strengthen, penalties for the release of
information to which access is restricted under these rules.

The distribution of both publicly accessible and protected data also presents ancillary
issues. Analysis of the data without a full understanding of the meaning of the data
elements or codes used, or without a full understanding the limitations of the data, can
result in conclusions not substantiated by the data. To some extent this can be addressed
by explanatory information provided with the transmittal of the compiled information.

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Section 4.40 (Commentary, cont.)

Another concern arises with release of compiled data in electronic form. This is the
result of the nature of electronic records, which are an atypical subset of data from all
court records. As electronic versions of information become more available, skewing
arises between what is available in electronic form, versus paper form. Compiled data
from the electronic record may, therefore, not be representative of all cases. The fact that
very little information prior to a certain date is available in electronic form could also
cause significant skewing. If historical records are not scanned or otherwise converted
into electronic form, the electronic records will only be recent cases or newer information
in older cases. There are no obvious ways to avoid this problem, assuming the cost of
producing electronic versions of all existing records is prohibitive.

Finally, an extracted set of information is a snapshot of the information, whereas the
database from which the information is extracted is dynamic, constantly changing and
growing.

Section 4.50 – Court Records Excluded from Public Access

The following information in a court record is not accessible to the public:

(a) Information that is not to be accessible to the public pursuant to state law; and

(b) Information that is not to be accessible to the public pursuant to federal law.

(c) The following information is not available without leave of the court:

(1) Complete social security numbers;
(2) Complete financial account numbers;
(3) Full names of minor children, unless state law requires a child’s name to
be accessible to the public;
(4) Full birth dates of any person.

(d) It is the responsibility of the filing party to comply with these rules to protect
private information.

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Section 4.50 (Commentary)

Task Force Commentary and Selected Text from CCJ/COSCA Guidelines for
Public Access to Court Records

The objective of this section is to identify those categories of information to which public
access will be prohibited. The concept of the section is that for certain types of
information an existing statute, rule or case law expresses a policy determination, made
by the Legislature or the judiciary, that the presumption of public access has been
overcome by an individual’s right to privacy, and that the prohibition of public access
applies on a categorical, as opposed to a case-by-case, basis.

The section suggests two possible sources of restrictions on access to information. The
first is state law. The following commentary provides several lists of categories that are
currently found in state statute, rule or case law. The second source is federal law,
although there are few, if any, such limitations. The inclusion of the various federal
laws in the Commentary that do restrict the distribution of some information, but have
not been found to apply to the distribution of court records, is intended to provide
court administrators with a convenient resource to ensure that administrators have an
accurate understanding of those federal laws so misapprehension of these provisions will
not be an obstacle to the efficient and appropriate release of court records.

Subsection (a) - State law: Information that is not accessible to the public pursuant to
state law generally falls into two categories. First are case types where the records of the
entire court proceedings are presumptively sealed. These are:

1. Child Abuse and Neglect Proceedings and Proceedings Brought to Terminate
Parental Rights Based Upon Abuse or Neglect of the Child. All court records pertaining
to actions taken under Title 41, Chapter 3 are not open for public inspection unless the
court “finds disclosure to be necessary for the fair resolution of the issue before it.” § 41-
3-205 (2), MCA;

2. Involuntary Commitment Proceedings pursuant to Title 53, part 21, Mental
Illness. Court records in these matters must be sealed five days prior to release of
respondent and only opened for “good cause shown.” § 53-21-103, MCA.

3. Minor’s names. State law requires the disclosure of a minor’s identity in some
circumstances. Disclosure may be required pursuant to a specific statutory mandate or
pursuant to a statutory provision applicable to both adults and minors where disclosure is
required and no exception for the disclosure of a minor’s identity has been established.
Section 4.50 (Commentary)

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Examples of such provisions are the traffic regulation laws. See generally Title 61,
Chapter 8, MCA. In those situations where state law does not require the disclosure of
minor’s names, the task force supports the use of fictitious names to refer to minors
whose names would otherwise be included in court records accessible to the public, such
as victims or witnesses. We agree that the use of initials to accomplish this purpose,
given Montana’s modest population, does not accord the privacy warranted in these
situations.

4. Formal Youth Court Records. These records are physically sealed on the youth’s
18th birthday, or, in cases where “jurisdiction of the court or any agency is extended
beyond the youth’s 18th birthday, the records” are sealed when the extended jurisdiction
has ended. § 41-5-216 (1), MCA. Prior to this time, these records are
open to public inspection, except for the “social, medical and psychological records,
youth assessment materials, predispositional studies and supervision records of
probationer” which may be accessed only by those designated in § 41-5-215 (2), MCA

However, medical records, fingerprints, DNA records, photographs, youth traffic
records, or “records in any case in which the youth did not fulfill all requirements of the
court’s judgment or disposition” as well as records identified in § 42-3-203, MCA, and
§ 45-5-624 (7), MCA are exempt from these sealing provisions. § 41-5-216 (4), MCA;

5. Informal Youth Court Records. Informal youth court records must also be
physically sealed on the youth’s 18th birthday, or, if jurisdiction has been extended, they
must be sealed when the jurisdiction has ended. § 41-5-216 (7), MCA.
However, these youth records may only be inspected by youth court personnel prior to
the youth’s 18th birthday, and only when there is a new offense;

6. Conciliation Court Proceedings. All district court hearings or conferences under
this chapter shall be closed unless opened to inspection by parties or counsel upon
judicial order. § 40-3-116, MCA.

7. Parentage Proceedings. All hearings or trials held under Title 40, part 6 must be
held in closed court without admittance of any person other than those necessary to the
action. All records other than the final judgment are only subject to inspection by
consent of court and all interested persons or in exceptional cases, only upon an order
“for good cause shown.” § 40-6-120, MCA;

4.50 (Commentary, cont)

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8. Adoption Proceedings. All papers and records concerning adoption “must be kept
as a permanent record of the court and must be withheld from inspection,” and may only
be distributed pursuant to a court order when good cause is shown, pursuant to the state
statutory provisions regarding the collection of vital statistics or for purposes of child
support enforcement and other narrow circumstances provided within Title 42, Chapter 6,
part 1. § 42-6-101, MCA;

9. Proceedings Regarding the Abuse or Neglect of Elderly Persons and Persons with
Developmental Disabilities. All actions presumed confidential and not released to public
unless by court order or action of law. § 52-3-813, MCA;

10. Proceedings Under Parental Notice of Abortion Act. This statute has been
enjoined from enforcement by the First Judicial District Court of Montana. A minor
petitioning to judicially bypass parental notification must be provided the option of using
a pseudonym or initials and all documents related to the petition are confidential and are
not available to the public. § 50-20-212(3), MCA;

11. Guardianship and Conservatorship Proceedings. Such proceedings must be
closed if requested by the person alleged to be incapacitated or his or her counsel. § 72-
5-315 (4), MCA;

12. Grand Jury Proceedings. Courts “shall order a hearing on matters affecting a
grand jury proceeding to be closed.” § 46-11-307, MCA. Disclosure of these
proceedings is limited and generally may not be made to the public unless authorized by
the district court. § 46-11-317, MCA;

13. Investigative Subpoena Proceedings. These proceedings are subject to the same
secrecy and disclosure provisions as grand jury proceedings. § 46-4-304 (2), MCA;

14. Dissolution of Marriage, Criminal Conversation or Seduction. Courts are
authorized to exclude everyone from the courtroom except the officers of the court, the
parties, their witnesses, and counsel for the trial of any issue of fact in these proceedings.
§ 3-1-313 (2), MCA;

15. Supervision Proceedings by Insurance Commissioner. All records of the
proceedings of actions taken under § 33-2-1321 and § 33-2-1322 are to be confidential,
unless the district court orders otherwise. § 33-2-1323, MCA.

4.50 (Commentary, cont.)

The Second category is information contained in court records that are not sealed, which
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state law recognizes as sufficiently private to prohibit public access:

1. The address, telephone number, or place of employment of a victim of a criminal
offense or a member of the victim’s family if the victim requests confidentiality, unless
this information “is of the location of the crime scene” or disclosure of this information
“is required by law, is necessary for law enforcement purposes, or is authorized by a
district count upon a showing of good cause.” § 44-5-311 (1), MCA;

2. All information identifying the victim of certain sexual crimes, unless that
information “is of the location of the crime scene” or the disclosure of this information
“is required by law, is necessary for law enforcement purposes, or is authorized by a
district count upon a showing of good cause.” § 44-5-311 (3), MCA. These crimes are
sexual assault, § 45-5-502, , sexual intercourse without consent, § 45-5-503, MCA,
indecent exposure, § 45-5-504, MCA, and incest, § 45-5-507, MCA;

3. A defendant’s DNA information disclosed during a criminal proceeding. §§ 44-6-
106, 108, MCA;

4. Videotapes that are part of the record in cases involving sexual offenses.
Videotapes “which are part of the court record are subject to a protective order of the
court for the purpose of protecting the privacy of the victim.” § 46-15-403, MCA;

5. Pre-sentence investigation reports, pursuant to § 46-18-113, MCA;

6. Notice by prosecutor of other crimes, wrongs or acts. Notice must be filed and
sealed until the time of trial or until a plea of guilty or nolo contendere is entered by the
defendant. § 46-13-109 (3), MCA;

7. Confidential criminal justice information. Dissemination of confidential criminal
justice information is restricted to criminal justice agencies, to those authorized by law to
receive it, and to those authorized by court order upon a written finding that the demands
of individual privacy do not clearly exceed the merits of public disclosure. § 44-5-303,
MCA;

8. Will filed with court. A will filed with the court must be sealed and kept
confidential during the testator’s lifetime. § 72-2-535, MCA;

4.50 (Commentary, cont.)

9. Writs of attachment. The fact of the filing of the complaint or the issuing of such
attachment cannot be disclosed to the public until after the filing of return of service of
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attachment. § 27-18-111, MCA;

10. Medical information provided for marriage license. All medical certificates,
laboratory statements and reports and information provided pursuant to 40-1-203 through
40-1-209 are confidential and may not be disclosed to anyone other than state or local
health officials. § 40-1-208, MCA;

11. Confidential information in certificate of marriage or dissolution of marriage.
Disclosure of confidential information in certificate of marriage or dissolution of
marriage for statistical purposes is prohibited unless disclosure is specifically authorized
by law for statistical or research purposes or unless ordered by a court. § 50-15-121 (6),
MCA;

12. Confidential information in birth records. Disclosure of “confidential
information” in birth records for medical or health use is prohibited unless disclosure is
specifically authorized by law for statistical or research purposes or unless ordered by a
court. § 50-15-121 (6), MCA.

Subsection (b) Federal Law: There are several types of information that are commonly,
if incorrectly, considered to be protected from public disclosure by federal law.

Although the laws or regulations may prohibit a federal agency, federal employees, or
certain other specifically designated parties from disclosing certain information, the
prohibitions generally do not extend to disclosure by state courts where the
information has become a part of the court record. Parties should take note that these
federal laws or regulations may apply to them when they introduce restricted information
onto the court records, which may require the individuals to request the court to restrict
access under sections 4.50 or 4.60(a). Each category is discussed below.

Social Security Numbers. Although there may be restrictions on federal agencies
disclosing Social Security Numbers (SSNs), they do not apply to state or local agencies
such as courts. One provision of the Social Security Acts does bar disclosure by state
and local governments of SSNs collected pursuant to any law enacted on or after October
1, 1990. 42 U.S.C. § 405(c)(2)(C)(vii)(I). Assuming the section is applicable to state
courts (there is some question about this), it would only apply to laws authorizing courts
to collect SSNs that were adopted after this date. One possible example of this may be the
law passed in the mid 1990s to facilitate child support collection that requires inclusion of
4.50 (Commentary, cont.)

SSNs in orders granting dissolution of marriage, establishing child support or
determining paternity. 42 U.S.C. § 405(c)(2)(C)(ii). There does not appear to be any
consensus as to whether the non-disclosure provision applies to, or is superseded by, the
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newer collection requirement.

Federal income or business tax returns. Federal law prohibits disclosure of tax returns by
federal agencies or employees, but the prohibition does not extend to disclosure by
others.

Educational information protected by federal law. FERPA protects information about
students receiving federal aid from disclosure by a university or public school system, but
it does not address disclosure of such information in a court record. 20 U.S.C. § 1232 g.

Health and medical information. The Health Insurance Portability and Accountability Act
of 1996 (HIPAA) and regulations adopted pursuant to it limit disclosure of certain health
related information about people by certain healthcare entities. 42 U.S.C. § 1320d; 45
C.F.R. Part 160 and 164. Whether the limitation extends to state court records is not
clear, however, state courts are not included within the definition of health care entities
that are covered by HIPAA. There are also federal restrictions regarding information in
alcohol and drug abuse patient records and requiring confidentiality of information
acquired by drug court programs. 42 U.S.C. § 290 dd - 2.

Criminal History Information. There are federal regulations generally restricting the use
of criminal history information contained in criminal records repositories maintained by
executive branch agencies, particularly non-conviction information, to criminal justice
purposes. The provisions do not extend to information once it becomes part of a court
record in a case; nor do they extend to court records containing criminal conviction
information.

Americans with Disabilities Act. Federal regulations implementing the Americans with
Disabilities Act provides that employers must segregate and keep confidential all
information regarding medical examinations of employees required by the employer that
are job-related and consistent with business necessity. 42 U.S.C. § 12112, 29 C.F.R. §
1630.14 (c)(1). Thus, to the extent that personnel records of court employees are
identified as court records under these rules, federal law would prohibit the distribution of
those records to the public.

Research Involving Human Subjects. There are federal regulations establishing practices
and, in certain circumstances, prohibiting disclosure of certain personal identifier
information gathered in the course of federally funded research on human subjects. 28
4.50 (Commentary, cont.)

C.F.R. Part 46 and 45 C.F.R. section 46. This does not apply to information gathered by
a state court in the normal course of judicial business, but it might apply to individuals

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requesting information from court records for research purposes under section 4.30 (bulk
access) or section 4.40 (compiled access). 28 C.F.R. § 46.101 (b)(4).

Subsection (c) Finally, the task force determined that there are few if any circumstances
where merits of public disclosure of social security numbers, financial account numbers,
minor children and birth dates would outweigh the privacy interests implicated. Thus, in
light of the absence of specific state or federal protection of such information when
contained in court records that are otherwise accessible to the public, the task force feels
it is necessary to include this protection in these court rules.

There are a variety of ways to comply with this rule. The task force believes that the
following are the most effective ways to accomplish this purpose:

1. Social security numbers. The task force recommends the disclosure of no more
than the last four digits of the social security number. However, as the task force does
not have the specific expertise to determine the implications of the publication of just
partial social security numbers upon the individual’s privacy interests, this
recommendation is provisional. The task force would recommend to the Court that
during the public comment period, a special invitation be made to members of the public
who have this specific expertise so the implications of even partial disclosure of social
security numbers can be thoroughly explored.

2. Financial account numbers. The task force supports the disclosure of only the
last four digits of any such account. As with the prior recommendation, however, this
recommendation is provisional, as the task force does not have the specific expertise to
determine the implications of the publication of partial financial account numbers upon
the individual’s the privacy interests. The task force would recommend to the Court that
during the public comment period, a special invitation be made to members of the public
who have this specific expertise so the implications of even partial disclosure of financial
account numbers can be thoroughly explored.

3. Minor’s names. In those situations where state law does not otherwise require
the disclosure of minor’s names, the task force supports the use of fictitious names to
refer to children victims or witnesses in court records accessible to the public. We agree
that the use of initials to accomplish this purpose does not, given Montana’s modest
population, accord the privacy warranted in these situations.

4. Full birth dates of any person. The task force supports the disclosure of only
the birth year, and not the month or date of birth.

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Section 4.60 - Requests to Prohibit Public Access to Information in Court
Records Or to Obtain Access to Restricted Information

(a) A motion or request to prohibit public access to information in a court record may
be made by any party to a case, the individual about whom information is present
in the court record, the clerk of court, or on the court's own motion. The court
must decide whether there are sufficient grounds to prohibit access by
determining whether the demand of individual privacy clearly exceeds the merits
of public disclosure.

The court should require that a party file a motion to protect the information, with
the information to be protected in a sealed envelope lodged, but not filed, with the
court. If the court grants the motion or request, the information will be filed
under seal. If the court denies the request, the party will have the option to file
the information with knowledge that it will be accessible to the public.

(b) In restricting access the court will use the least restrictive means that will achieve
the purposes of the access rules and the needs of the requestor.

A request to obtain access to information in a court record to which access is
prohibited under section 4.50 or 4.60(a) of these rules may be made by any
member of the public or on the court's own motion upon notice as provided in
subsection 4.60(c). The court must decide whether there are sufficient grounds to
prohibit access by determining whether the demand of individual privacy clearly
exceeds the merits of public disclosure. When the request is made for bulk or
compiled information to which public access has been prohibited under Section
4.50 and 4.60 (a) of these rules, the court should consider the actions provided in
section 4.40 (c) when making such a determination.

(c) The following is the process for making requests described in 4.50(a) and 4.50 (b)
where that process is not provided in statute or case law. The request shall be
made by a written motion to the court. The requestor will give notice to all
parties in the case except as prohibited by law. The court may require notice to be
given by the requestor or another party to any individuals or entities identified in
the information that is the subject of the request. When the request is for access
to information to which access was previously prohibited under section 4.60(a),
the court will provide notice to the individual or entity that requested that access
be prohibited either itself or by directing a party to give the notice.

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4.60 (Commentary)

Task Force Commentary and Selected Text from CCJ/COSCA Guidelines for
Public Access to Court Records

This section lays out the basic considerations and processes for prohibiting access to
otherwise publicly available information (often referred to as sealing), or opening access
to restricted information (whether restricted under section 4.50 or section 4.60(a)). The
language incorporates the presumption of openness, and the need for sufficient grounds
to overcome the presumption. The section also specifies the mechanism for making the
request and directs the court to use the least restrictive approach possible when restricting
public access. The section reflects that the consideration must be made by the court on a
case-by-case basis.

Subsection (a) allows anyone who is identified in the court record to request prohibition
of public access. This specification is quite broad, including a witness in a case or
someone about whom personally identifiable information is present in the court record,
but who is not a party to the action. While the reach of the rule is quite broad, this is
required to meet the intent of subsection 1.00 (a)(6) regarding protection of individual
privacy rights and interests, not just the privacy rights and interests of parties to a case.
Protection is available for someone who is referred to in the case, but does not have the
options or protections a party to the case would have.

Subsection (a) provides only for prohibiting access to information, not prohibiting access
to the existence of the information. Section 4.10(b) specifically provides that the
existence of information to which access is prohibited will be publicly accessible.
Subsection (a) does not have any restrictions regarding when the request can be made,
implying it can be done at any time.

This subsection provides that it is the court that will decide whether access will be
prohibited. Even if all parties agree that public access to information should be
prohibited, this is not binding on the court, which must still make the decision based on
the applicable law.

Subsection (a) also addresses what access is permitted between the time a request to
prohibit access is made and the court rules on the request. This is particularly critical if
the request is made simultaneously with the filing of the information. It is also more
critical where the parties represent themselves and are unaware of appropriate
procedures. A court should require that a party file a motion to prohibit access with the
information to be protected in a sealed envelope being lodged, but not filed, with the
court. If the court grants the request, the information can be filed with prohibition to
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4.60 (Commentary, cont.)

access. If the request is denied, the party has the option of filing the information without
prohibition of access, or not filing it. In order to avoid the misuse of such a provision to
achieve at least temporary restriction, a court should establish procedures that provide for
prompt consideration of a request to prohibit access.

The last paragraph to subsection (a) requires the court to seek an approach that minimizes
the amount of information that cannot be accessed, as opposed to an "all or nothing"
approach. This is directed at the question of what to do about a document or other
material in the court record that contains some information to which access should be
prohibited along with other information that remains publicly accessible. The issue
becomes one of whether it is technically possible to redact some information from a
document and to allow the balance of the document to be publicly available. Less
restrictive methods include redaction of pieces of information in the record, sealing of
only certain pages of a document, as opposed to the entire document, or sealing of a
document, but not the entire file. As noted previously (see commentary under section
3.20) newer technologies permit tagging of information in an electronic records in a way
that readily allows electronic redaction of pieces of information in an electronic
document, and courts are encouraged to obtain this capability when acquiring new
systems. As discussed in the commentary to section 4.10, other approaches to restricting
access to names would preferably include using pseudonyms or other unique identifier
rather than a full or real name.

In addition to whether it is technically possible, there may be an issue of whether it is
feasible to redact information in a record, and whether the court or clerk has the resources
to do so. The work needed to exhaustively review a large file or document to find
information to be redacted may be prohibitive, such that access to the whole file or
document would be restricted, rather than attempting redaction.

There is information that may be contained in court records which has not been protected
in state statute, but may raise significant privacy interests that individuals may seek to
protect pursuant to this section.

1. Medical records; State v. Nelson, (1997) 283 Mont. 231, 242, 941 P.2d 441, 448.
These records may include descriptions or analysis of a person’s DNA or genetic
material, biometric identifiers, psychological evaluations, examination, diagnosis,
evaluation or treatment records and photographs. In addition to court files in connection
with a specific case, such information may also be found jury questionnaires (see
discussion below);

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4.60 (Commentary, cont.)

2. Identity of a witness where the physical safety of the witness is in actual jeopardy,
and no less restrictive means of protecting the right to privacy are available. Great Falls
Tribune v. District Court, (1989) 238 Mont. 310, 319, 777 P.2d 345, 350. Other
individuals who may similarly be in actual jeopardy could include victims in stalking or
domestic violence cases, informants or potential or sworn jurors in a criminal case. Such
identifying information may include telephone number, address, email address or place of
employment;

3. Financial information that provides identifying account numbers on specific
assets, liabilities, accounts, or credit cards. Such information may be found within jury
questionnaires, applications filed to request the waiver of court fees or the appointment of
counsel at public expense, and child support enforcement documents;

4. Full addresses of children who are victims or witnesses;

5. Photographs and other admitted exhibits depicting violence, death, or children
subjected to abuse;

6. State income or business tax returns;

7. Personnel records, Montana Human Rights Bureau v. City of Billings, (1982) 199
Mont 434, 443, 649 P.2d 1283, 1288;

8. Search warrants and affidavits prior to the return on the warrant;

9. Arrest warrants and affidavits prior to the arrest of the person named;

10. Proprietary business information, § 30-14-406 (2005), MCA;

11. Judicial work product;

12. Court administration and clerk of court work product;

13. Certain court administration records;

14. Information gathered or created during the investigatory phase that is related to
the performance, misconduct or discipline of a lawyer, which had been deemed
confidential pursuant to Rule 20 of the Rules of Lawyer Disciplinary Enforcement;

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4.60 (Commentary, cont.)

15. Information gathered or created during the investigatory phase that is related to
the performance, misconduct or discipline of a judicial officer, which had been deemed
confidential pursuant to Rule 7 of the Rules of the Judicial Standards Commission;

16. Information gathered or created during the investigatory phase related to alleged
misconduct by entities or individuals regulated by the judiciary.
Subsection (b) specifically allows a court to consider providing access to information to
which access is categorically prohibited under section 4.50, as well as specific
information in a court record to which access has previously been prohibited by a court
pursuant to section 4.60(a). This subsection addresses those situations where the reasons
for prohibiting access no longer apply or have changed so that the merits of public
disclosure of the information now outweigh the interest in privacy. .

Subsection (b) provides a standard and procedure for reviewing a previous decision to
prohibit public access to information.

Subsection (b) provides that "any member of the public" can make the request for access
to prohibited information. This term is defined broadly in section 2.00, and includes the
media and business entities as well as individuals.

Subsection (c) contemplates a written motion seeking to prohibit, or gain, access.
Although a motion is specified, the section is silent as to the need for oral argument or
testimony, leaving this up to the court. Notice is required to be given to all parties by the
requestor, except where prohibited by law." The subsection gives the court discretion to
require notice to be given to others identified in the information that is the subject of the
request. If public access to the information was restricted by a prior request, the
subsection requires the court to arrange for notice to be given to the person who made the
prior request. The process for seeking review by an appellate court is not specified in the
policy, as the normal appeal process for a judicial decision is assumed to apply.

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When Accessible
Section 5.00 – When Court Records May Be Accessed

(a) Court records will be available for public access in the courthouse during hours
established by the court. Court records in electronic form to which the court
allows remote access under these rules will be available for access at least during
the hours established by the court for courthouse access, subject to unexpected
technical failures or normal system maintenance announced in advance.

(b) Upon receiving a request for access to information the court will respond within a
reasonable time regarding the availability of the information and provide the
information within a reasonable time.

Task Force Commentary and Selected Text from CCJ/COSCA Guidelines for
Public Access to Court Records

This section requires a court to specify when court records are accessible. The rules
direct, as a minimum, that remote access be available at the same times as records are
accessible at the courthouse. This section does not preclude or require “after hours”
access to court records in electronic form. Courts are encouraged to provide access to
records in electronic form beyond the hours access is available at the courthouse, with a
goal of 24 hours a day, seven days a week. However, it is not the intent of the rules to
require courts to expend money or other resources to make remote access possible
outside of normal business hours. The section acknowledges that access to electronic
records may occasionally not be available during normal business hours because of
unexpected interruptions to information technology systems, crashes, and during planned
interruptions such as for back-up of databases, software upgrades or maintenance, or
hardware upgrades or maintenance.

Subsection (b) addresses the question of how quickly the information will be made
available. There are a number of factors that can affect how quickly the court responds to
a request and provides the information, assuming it is publicly accessible. The response
will be slower if the request is non-specific, is for a large amount of information, is for
information that is in off-site storage, or requires significant amounts of court resources
to respond to the request. The objective is to have a prompt and timely response to a
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5.00 (Commentary, cont.)

request for information.

Fees
Section 6.00 – Fees for Access

(a) Disclosure or distribution of documents is subject to the payment of applicable
fees as set by statute.

(b) The court may charge a fee for bulk distribution or compiled information in
accordance with state law. To the extent that public access to information is provided
exclusively through a vendor, the court will ensure that any fee imposed by the vendor
for the cost of bulk and compiled information is reasonable and covers the vendor's actual
costs.

Task Force Commentary and Selected Text from CCJ/COSCA Guidelines for
Public Access to Court Records

This section recognizes that providing access to information in court records does
consume court resources. Access is not without cost. Statutory fees of the clerk of
district court are enumerated in § 25-1-201, MCA. The preparation and access to the
transcript of proceedings is within the authority of the court reporter, not the court. In
such instances the existing state laws and rules governing the cost of the transcript, in
paper or electronic form, apply. See § 3-5-604, MCA.

Fees for bulk access pursuant to section 4.30 or compiled access pursuant to section 4.40,
which require special programming or actions because the information is not regularly
available in the form requested, shall be calculated in accordance with § 2-6-110, MCA.

This section also provides that if access is provided exclusively through a vendor, any fee
imposed must be reasonable.

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Obligation of Vendors Providing Information Technology Support

Section 7.00 -- Obligation of Vendors Providing Information Technology
Support to a Court to Maintain Court Records

(a) If a court contracts with a vendor to provide information technology support to
gather, store, or make accessible court records, the contract will require the
vendor to comply with the intent and provisions of these access rules. For
purposes of this section, “vendor” includes a state, county or local governmental
agency that provides information technology services to a court as well as private
contractors.

(b) By contract the vendor will be required to comply with the requirement of
sections 8.10, 8.20, 8.30, 8.40 and 8.50 to educate litigants, the public, and its
employees and subcontractors about the provisions of the access policy.

(c) By contract the vendor will be required to notify the court of any requests for
compiled information or bulk distribution of information, including the vendor’s
requests for such information for its own use. Accordingly, rules 4.30 and 4.40
apply.

Task Force Commentary and Selected Text from CCJ/COSCA Guidelines for
Public Access to Court Records

This section addresses situations where information technology services are provided to a
court by another agency, usually in the executive branch, or by outsourcing of court
information technology services to non-governmental entities. The intent is to have the
rules apply regardless of who is providing the services involving court records. Implicit
in these rules is that court records are under the control of the judiciary, and that the
judiciary has the responsibility to ensure public access to court records and to restrict
access where appropriate.

The section provides a standard applicable to vendors as well as the courts. Regulating
vendors is also relevant to the issue of liability of the court for release of information that
causes harm, particularly if there is no judicial immunity regarding adoption or
implementation of a local policy.

Subsection (a): “Information technology support” is meant to include a wide range of
activities, including records management services or equipment, making and keeping the
verbatim record, computer hardware or software, database management, web sites, and
communications services used by the court to maintain court records and provide public

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Obligation of Vendors Providing Information Technology Support

7.00 (Commentary, cont.)

access to them. It would also apply to vendors who are only providing access to a copy of
electronic court records maintained by the court itself or by an executive branch agency.

Vendor compliance is particularly important where the vendor’s system is the only means
of accessing the information. The court must ensure that the vendor is not using the
exclusive control of access to limit access, whether through fees, technology
requirements, or a requirement to sign a “user agreement,” particularly if it imposes
restrictions on the use of the information that the court could not impose. Subsection (b):
The requirements of the rules regarding a vendor educating its employees or
subcontractors, litigants, and the public are in addition to any incentive to do so provided
by the liability or indemnity provisions of applicable law or the contract or agreement
with the court.

Subsection (c): This subsection requires vendors to notify the court of requests for bulk
information (pursuant to section 4.30) or compiled information (pursuant to section 4.40).
The court must receive this notice in order to properly control the release of information
in its records.

Obligation of the Court to Inform and Educate

Section 8.00 – Information and Education Regarding Access Rules

Section 8.10 – Dissemination of Information to Litigants about Access to
Information in Court Records

The court will make information available to litigants and the public that information in
the court record about them is accessible to the public, including remotely and how to
request to restrict the manner of access or to prohibit public access.

Task Force Commentary and Selected Text from CCJ/COSCA Guidelines for
Public Access to Court Records

This section recognizes that litigants may not be aware that information provided to the
court, by them or other parties in the case, generally is accessible to the public, including,

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Obligation of the Court to Inform and Educate

8.10 (Commentary, cont.)

possibly, bulk downloads. Litigants may also be unaware that some of the information
may be available in electronic form, possibly even remotely. This section requires the
courts to inform litigants about public access to court records so they can make efforts to
protect their privacy throughout the proceedings. Such a requirement ensures that the
public is provided the information necessary to protect their interests.

This section also specifically requires the court to inform litigants of the process for
requesting restrictions to the manner of access under section 4.50, and to inform litigants
about how to request prohibition of public access to information in their case pursuant to
section 4.60. This would be especially important in cases involving domestic violence,
sexual assault, stalking, or requests for protective orders, and witnesses where there is a
greater risk of harm to individuals.

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Obligation of the Court to Inform and Educate

Section 8.20 – Dissemination of Information to the Public about Accessing
Court Records

The Court will develop and make information available to the public about how to obtain
access to court records pursuant to these rules.

Task Force Commentary and Selected Text from CCJ/COSCA Guidelines for
Public Access to Court Records

Public access to court records is meaningless if the public does not know how to access
the records. This section establishes an obligation on the court to provide information to
the public, which should include jurors, victims, witnesses and other participants in
judicial proceedings, about how to access court records.

Section 8.30 – Education of Judges and Court Personnel about the Access
Rules

All Courts and clerks of court shall ensure that their personnel comply with these access
rules and respond to requests for access in a manner consistent with the rules.

Task Force Commentary and Selected Text from CCJ/COSCA Guidelines for
Public Access to Court Records

This section mandates that the court and clerk of court educate and train their employees
to be able to properly implement an access policy. Properly trained employees will
provide better customer service, facilitating access when appropriate, and preventing
access when access is restricted or prohibited. When properly trained, there is also less
risk of inappropriate disclosure, thereby protecting privacy and lowering risk to
individuals from disclosure of sensitive information. Training should also be provided to
employees of other agencies, or their contractors, who have access to information in court
records, for example as part of shared integrated criminal justice information systems.

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Obligation of the Court to Inform and Educate

Section 8.40 – Education about Process to Change Inaccurate Information in
a Court Record

All Courts will inform the public of the rules by which the court will correct, expunge or
update inaccurate information.

Section 8.50 - Procedure to Correct, Expunge or Update Inaccurate
Information

An individual who believes that a case record contains clerical errors may submit a
written request for correction to the court, clerk of court, or other custodian who
maintains the record, with a copy served on all parties to the case. Such request shall be
no longer than two pages in length. The custodian shall promptly do one of the
following:

(a) correct a clerical error for which no court order is required: (b) forward the request to
the court to be considered informally; or (c) forward the request to the party or participant
who submitted the record containing the alleged clerical error who in turn may seek
appropriate relief from the court. Upon forwarding under clause (b), the court may either
correct the error on its own initiative or direct that the request will only be considered
pursuant to a motion requesting correction. The court’s direction may also establish
appropriate requirements for a motion. The request for correction authorized in the rule
need not be exhausted before other relief is requested.

Task Force Commentary and Selected Text from CCJ/COSCA Guidelines for
Public Access to Court Records

Court records are as susceptible to errors or incomplete information as any other public
record. Section 8.40 and 8.50 establishes the method for reviewing information in court
records and making any changes or additions to make the record more accurate or
complete.

Page 44 of 44 Privacy and Access Task Force November 2006