CHAPTER 291
(SCR 05-05)
In the Matter of the Amendment of SDCL Chapter 15-15A.
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
IN THE MATTER OF THE AMENDMENT
OF SDCL CHAPTER 15-15A RULE 05-05
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A hearing was held on February 17, 2005, at Pierre, South Dakota, relating to the
amendment of SDCL chapter 15-15A, and the Court having considered the proposed amendment,
the correspondence and oral presentations relating thereto, if any, and being fully advised in the
premises, now, therefore, it is
ORDERED that SDCL chapter 15-15A be and it is hereby amended to read in its entirety
as follows:
UNIFIED JUDICIAL SYSTEM
COURT RECORDS RULE
SDCL CHAPTER 15-15A
15-15A-1.
Purpose of rule of access to court records.
The purpose of this rule is to provide
a comprehensive policy on access to court records. The rule provides 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 rule is intended to provide guidance to 1) litigants, 2) those seeking access to court records,
and 3) judges, court and clerk of court personnel responding to requests for access.
15-15A-2.
Who has access to court records under the rule.
Every member of the public has the
same access to court records as provided in this rule, except as provided otherwise by statute or
rule and except as provided in § 15-15A-7.
(1)
any person and any business or non-profit entity, organization or association;
(2)
any governmental agency for which there is no existing policy, statute or rule defining
the agency's access to court records;
(3)
media organizations.
"Public" does not include:
(4)
court or clerk of court employees;
(5)
people or entities, private or governmental, who assist the court in providing court
services;
(6)
public agencies whose access to court records is defined by another statute, rule, order
or, policy or database access agreement with the South Dakota Unified Judicial System;
(7)
the parties to a case or their lawyers regarding access to the court record in their case,
which may be defined by statute or rule.
15-15A-3.
Definition of terms.
(1)
"Court record" includes any document, information, or other thing that is collected,
received or maintained by a clerk of court in connection with a judicial proceeding.
"Court record" does not include other records maintained by the public official who also
serves as clerk of court or 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 this section.
(2)
Information in a court record "in electronic form" includes information that exists as:
(a) electronic representations of text or graphic documents; (b) an electronic image,
including a video image, of a document, exhibit or other thing; or (c) data in the fields
or files of an electronic database.
(3)
"Public access" means that the public may inspect and obtain a copy of the information
in a court record unless otherwise prohibited by statute, court rule or a decision by a
court of competent jurisdiction. The public may have access to inspect information in
a court file upon payment of applicable fees.
(4)
"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.
15-15A-4.
Applicability of rule.
This rule applies 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.
15-15A-5.
General access rule.
(1)
Information in the court record is accessible to the public except and as prohibited by
statute or rule and except as restricted by §§ 15-15A-7 or § 15-15A-10 through 15-15A-
13.
(2)
There shall be a publicly accessible indication of the existence of information in a court
record to which access has been restricted, which indication shall not disclose the nature
of the information protected, i.e., "sealed document."
(3)
An individual circuit or a local court may not adopt a more restrictive access policy or
otherwise restrict access beyond that provided by statute or in this rule, nor provide
greater access than that provided for by statute or in this rule.
15-15A-6.
Court records that are only publicly available at a court facility.
A request to limit
public access to information in a court record to a court facility in the jurisdiction may be made
by any party to a case, an individual identified in the court record, or on the court's own motion.
For good cause, the court will limit the manner of public access. In limiting the manner of access,
the court will use the least restrictive means that achieves the purposes of this access rule and the
needs of the requestor.
15-15A-7.
Court records excluded from public access.
The following information in a court
record is not accessible to the public:
(1)
Information that is not to be accessible to the public pursuant to federal law;
(2)
Information that is not to be accessible to the public pursuant to state law, court rule or
case law as follows;
(3)
Examples of such state laws, court rules, or case law follow. Note this may not be a
complete listing and the public and court staff are directed to consult state law, court
rules or case law. Note also that additional documents are listed below that may not be
within court records but are related to the court system; the public and court staff should
be aware of access rules relating to these documents.
(a)
Abortion records (closed); § 34-23A-7.1
(b)
Abuse and neglect files and records (closed, with statutory exceptions); § 26-8A-
13
(c)
Adoption files and adoption court records (closed, with statutory exceptions);
§§ 25-6-15 through 25-6-15.3
(d)
Affidavit filed in support of search warrant (sealed if so ordered by court, see
statutory directives); § 23A-35-4.1
(e)
Attorney discipline records (closed until formal complaint has been filed with
Supreme Court by the State Bar Association's Disciplinary Board or Attorney
General, accused attorney requests matter be public, or investigation is premised
on accused attorney's conviction of a crime); § 16-19-99
(f)
Civil case filing statements (closed by Supreme Court Rule 03-20); § 15-6-5(h)
(g)
Coroner's inquest (closed until after arrest directed if inquisition finds criminal
involvement with death); § 23-14-12
(h)
Custody or visitation dispute mediation proceedings pursuant to § 25-4-60
(closed, inadmissible into evidence)
(i)
Discovery material (closed unless admitted into evidence by court) §§ 15-6-
26(c); 15-6-5(g)
(j)
Domestic abuse victim's location (closed, with statutory exception); § 25-10-39
(k)
Employment examination or performance appraisal records maintained by
Bureau of Personnel (closed); § 1-27-1
(l)
Grand jury proceedings (closed with statutory exceptions); § 23A-5-16
(m)
Guardianships and conservatorships (closed with statutory exceptions); § 29A-5-
311
(n)
Involuntary commitment for alcohol and drug abuse (petition, application, report
to circuit court and court's protective custody order sealed; law enforcement or
prosecutor may petition the court to examine these documents for limited
purpose); § 34-20A-70.2
(o)
Judicial disciplinary proceedings (closed until Judicial Qualifications
Commission files its recommendation to Supreme Court, accused judge requests
matter be public, or investigation is premised on accused judge's conviction of
either a felony crime or one involving moral turpitude); ch. 16-1A, Appx. III(1)
(p)
Juvenile court records and court proceedings (closed with statutory exception);
§§ 26-7A-36 through -38; §§ 26-7A-113 through -116
(q)
Mental illness court proceedings and court records (closed); §§ 27A-12-25; 27A-
12-25.1 through -32
(r)
Pardons (statutory exceptions, see § 24-14-11)
(s)
Presentence investigation reports (closed); §§ 23A-27-5 through--10; § 23A-27-
47
(t)
Probationer under suspended imposition of sentence (record sealed upon
successful completion of probation conditions and discharge); §§ 23A-27-13.1;
23A-27-17
(u)
Records prepared or maintained by court services officer (closed except by
specific order of court); § 23A-27-47
(v)
Trade secrets (closed); § 15-6-26(c)(7)
(w)
Trusts (sealed upon petition with statutory exceptions); § 21-22-28
(x)
Voluntary termination of parental rights proceedings and records (closed except
by order of court); § 25-5A-20
(y)
Wills (closed with statutory exceptions); § 29A-2-515
(z)
Written communication between attorney and client; attorney work product
(closed unless such privilege is waived); ch. 16-18, Appx. Rule 1.6
(aa)
Information filed with the court pending in camera review (closed)
(bb)
Any other record declared to be confidential by law; § 1-27-3.
15-15A-8.
Requests for bulk distribution of court records. Confidential numbers and
financial documents excluded from public access.
Dissemination of bulk information for resale is
prohibited pursuant to § 1-27-1. Any other bulk dissemination is prohibited except as authorized
by the State Court Administrator or the Chief Justice of the Supreme Court. The following
information in a court record is not accessible to the public.
(1)
Social security numbers, employer or taxpayer identification numbers, and financial
account numbers of a party or party's child.
(2)
Financial documents such as income tax returns, W-2's and schedules, wage stubs,
credit card statements, financial institution statements, credit card account statements,
check registers, and other financial information.
15-15A-9.
Access to compiled information from court records. Filing confidential numbers and
financial documents in court records.
(1)
Compiled information is defined as information that is derived from the selection,
aggregation or reformulation by the Supreme Court of some of the information from
more than one individual court record.
(2)
Any member of the public may request compiled information that consists solely of
information that is publicly accessible and that is not already available in an existing
report. The Supreme Court may compile and provide the information if it determines,
in its discretion, that providing the information meets criteria established by the Court,
that the resources are available to compile the information and that it is an appropriate
use of public resources. The State Court Administrator's Office will make the initial
determination as to whether to provide the compiled information.
(a)
Compiled information that includes information to which public access has been
restricted may be requested by any member of the public only for scholarly,
journalistic, political, governmental, research, evaluation, or statistical purposes.
(b)
The request shall a) identify what information is sought; b) describe the purpose
for requesting the information and explain how the information will benefit the
public interest or public education, and c) explain provisions for the secure
protection of any information requested to which public access is restricted or
prohibited.
(c)
The Supreme Court may grant the request and compile the information if it
determines that doing so meets criteria established by the Court, is consistent
with the purposes of the access rules, that the resources are available to compile
the information, and that it is an appropriate use of public resources.
(d)
If the request is granted, the Supreme 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
(iii)
There will be no copying or duplication of information or data provided
other than for the stated scholarly, journalistic, political, governmental,
research, evaluation, or statistical purpose.
The Supreme Court may make such additional orders as may be needed to protect information
to which access has been restricted or prohibited.
(1)
Social security numbers, employer or taxpayer identification numbers, and financial
account numbers of a party or party's child, where required to be filed with the court
shall be submitted on a separate Confidential Information Form, appended to these
rules, and filed with the pleading or other document required to be filed. The
Confidential Information Form is not accessible to the public.
(2)
Financial documents named in § 15-15A-8(2) that are required to be filed with the court
shall be submitted as a sealed document and designated as such to the clerk upon filing.
The Sealed Financial Documents Information Form appended to these rules shall be
attached to financial documents being filed with the court. The Sealed Financial
Documents Information Form is confidential and is not accessible to the public. The
sealed financial documents will not be publicly accessible, even if admitted as a trial or
hearing exhibit, unless the court permits access pursuant to § 15-15A-10. The court
may, on its own motion, seal financial documents that have been submitted without the
Sealed Financial Documents Information Form.
(3)
Parties with cases filed prior to the effective date of this rule, or the court on its own,
may, by motion, protect the privacy of confidential information as defined in § 15-15A-
8. Parties filing this motion will submit a completed Confidential Information Form or
Sealed Financial Documents Information Form as appropriate.
15-15A-10.
Requests to prohibit public access to information in court records. Procedure for
requesting access to sealed financial documents.
A 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, or on the court's own motion. Notice of the request must be provided
to all parties in the case and the court may order notice be provided to others with an interest in the
matter. The court shall hear any objections from other interested parties to the request to prohibit
public access to information in the court record. The court must decide whether there are sufficient
grounds to prohibit access according to applicable constitutional, statutory and common law. In
deciding this the court should consider the purpose of this rule as set forth in § 15-15A-1. In
restricting access, the court will use the least restrictive means that will achieve the purposes of
this access rule and the needs of the requestor.
(1)
Any person may file a motion, supported by affidavit showing good cause, for access
to sealed financial documents. Written notice of the motion shall be required.
(2)
If the person seeking access cannot locate a party to provide the notice required under
this rule, after making good faith reasonable effort to provide such notice as required
by applicable court rules, an affidavit may be filed with the court setting forth the efforts
to locate the party and requesting waiver of the notice provisions of this rule. The court
may waive the notice requirement of this rule if the court finds that further good faith
efforts to locate the party are not likely to be successful.
(3)
The court shall allow access to sealed financial documents, or relevant portions of the
documents, if the court finds that the public interest in granting access or the personal
interest of the person seeking access outweighs the privacy interests of the parties or
dependent children. In granting access the court may impose conditions necessary to
balance the interests consistent with this rule.
15-15A-11.
When court records may be accessed. Requests for bulk distribution of court
records.
(1)
Court records will be available where 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 this rule 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.
(2)
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.
Dissemination of bulk information for resale is prohibited pursuant to § 1-27-1. Any other bulk
dissemination is prohibited except as authorized by the State Court Administrator or the Chief
Justice of the Supreme Court.
15-15A-12.
Fees for accessing court records. Access to compiled information from court
records.
The Supreme Court may charge a fee for access to and copies of court records in
electronic form, for remote access or compiled information. The fee shall be reasonable and may
include costs for labor, materials and supplies. Fees for record searches are set forth in § 16-2-29.5.
Some entities, and other entities under certain conditions, are exempt from paying a record search
fee pursuant to § 16-2-29. Copying and certification fees shall be charged as determined by statute
or Supreme Court Rule.
(1)
Compiled information is defined as information that is derived from the selection,
aggregation or reformulation by the Supreme Court of some of the information from
more than one individual court record.
(2)
Any member of the public may request compiled information that consists solely of
information that is publicly accessible and that is not already available in an existing
report. The Supreme Court may compile and provide the information if it determines,
in its discretion, that providing the information meets criteria established by the Court,
that the resources are available to compile the information and that it is an appropriate
use of public resources. The State Court Administrator's Office will make the initial
determination as to whether to provide the compiled information.
(a)
Compiled information that includes information to which public access has been
restricted may be requested by any member of the public only for scholarly,
journalistic, political, governmental, research, evaluation, or statistical purposes.
(b)
The request shall a) identify what information is sought; b) describe the purpose
for requesting the information and explain how the information will benefit the
public interest or public education, and c) explain provisions for the secure
protection of any information requested to which public access is restricted or
prohibited.
(c)
The Supreme Court may grant the request and compile the information if it
determines that doing so meets criteria established by the Court, is consistent
with the purposes of the access rules, that the resources are available to compile
the information, and that it is an appropriate use of public resources.
(d)
If the request is granted, the Supreme 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
(iii)
There will be no copying or duplication of information or data provided
other than for the stated scholarly, journalistic, political, governmental,
research, evaluation, or statistical purpose.
The Supreme Court may make such additional orders as may be needed to protect information
to which access has been restricted or prohibited.
15-15A-13.
Requests to prohibit public access to information in court records.
A 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, or on the court's own motion.
Notice of the request must be provided to all parties in the case and the court may order notice be
provided to others with an interest in the matter. The court shall hear any objections from other
interested parties to the request to prohibit public access to information in the court record. The
court must decide whether there are sufficient grounds to prohibit access according to applicable
constitutional, statutory and common law. In deciding this the court should consider the purpose
of this rule as set forth in § 15-15A-1. In restricting access, the court will use the least restrictive
means that will achieve the purposes of this access rule and the needs of the requestor.
15-15A-14.
When court records may be accessed.
(1)
Court records will be available where 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 this rule 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.
(2)
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.
15-15A-15.
Fees for accessing court records.
The Supreme Court may charge a fee for access
to and copies of court records in electronic form, for remote access or compiled information. The
fee shall be reasonable and may include costs for labor, materials and supplies. Fees for record
searches are set forth in § 16-2-29.5. Some entities, and other entities under certain conditions, are
exempt from paying a record search fee pursuant to § 16-2-29. Copying and certification fees shall
be charged as determined by statute or Supreme Court Rule.
CONFIDENTIAL INFORMATION FORM (Required by SDCL 15-15A-9)
___________________________________ Case No. _______________
Plaintiff/Petitioner
___________________________________
Defendant/Respondent
The information on this form is confidential and shall not be placed in a publicly accessible portion
of a court record.
NAME SOCIAL SECURITY NUMBER, EMPLOYER
IDENTIFICATION NUMBER, TAXPAYER
IDENTIFICATION NUMBER, AND
FINANCIAL ACCOUNT NUMBERS
Plaintiff/Petitioner ________________________________________
________________________________________
1._____________________________ ________________________________________
________________________________________
2._____________________________ ________________________________________
________________________________________
3._____________________________ ________________________________________
Defendant/Respondent ________________________________________
________________________________________
1.______________________________ ________________________________________
________________________________________
2.______________________________ ________________________________________
________________________________________
3.______________________________ ________________________________________
Other Parties (including minor children)__________________________________________
________________________________________
1.______________________________ ________________________________________
________________________________________
2.______________________________ _______________________________________
________________________________________
3.______________________________ ________________________________________
________________________________________
4.______________________________ ________________________________________
________________________________________
Information supplied by: ________________________________________________________
Signed: _________________________________________
Firm: _________________________________________
Address: _________________________________________
_________________________________________
_________________________________________
Date _________________________
SEALED FINANCIAL DOCUMENTS INFORMATION FORM
(Required by SDCL 15-15A-9)
___________________________________ Case No. ___________________
Plaintiff/Petitioner
___________________________________
Defendant/Respondent
The information on this form is confidential and shall not be placed in a publicly accessible portion
of a court record.
_____ Income Tax Records
Period Covered:
_____ Financial Account Statements
Period Covered:
_____ Wage Stubs
Period Covered:
_____ Credit Card Account Statements
Period Covered:
_____ Other:
Information supplied by: ________________________________________________
Signed: _________________________________________
Firm: _________________________________________
Address: _________________________________________
_________________________________________
_________________________________________
Date: ____________________________________
IT IS FURTHER ORDERED that this rule shall become effective immediately.
DATED at Pierre, South Dakota, this 25th day of February 2005.