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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 
Draft-Model Access Rules with Commentary 

Page 1 of 44 Privacy and Access Task Force November 2006 

Model Access Rules with Commentary 

-DraftPrivacy 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 
Draft-Model Access Rules with Commentary 

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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
Draft-Model Access Rules with Commentary 

Page 3 of 44 Privacy and Access Task Force November 2006 

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. 
Draft-Model Access Rules with Commentary 

Page 4 of 44 Privacy and Access Task Force November 2006 

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 
Draft-Model Access Rules with Commentary 

Page 5 of 44 Privacy and Access Task Force November 2006 

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 
Draft-Model Access Rules with Commentary 

Page 6 of 44 Privacy and Access Task Force November 2006 

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). 
Draft-Model Access Rules with Commentary 

Page 7 of 44 Privacy and Access Task Force November 2006 

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. 

 
Draft-Model Access Rules with Commentary 

Page 8 of 44 Privacy and Access Task Force November 2006 

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.
Draft-Model Access Rules with Commentary 

Access to What 

Page 9 of 44 Privacy and Access Task Force November 2006 

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 
Draft-Model Access Rules with Commentary 

Access to What 

Page 10 of 44 Privacy and Access Task Force November 2006 

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. 
Draft-Model Access Rules with Commentary 

Access to What 

Page 11 of 44 Privacy and Access Task Force November 2006 

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 
Draft-Model Access Rules with Commentary 

Access to What 

Page 12 of 44 Privacy and Access Task Force November 2006 

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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Page 13 of 44 Privacy and Access Task Force November 2006 

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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Page 14 of 44 Privacy and Access Task Force November 2006 

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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Page 17 of 44 Privacy and Access Task Force November 2006 

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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Page 18 of 44 Privacy and Access Task Force November 2006 

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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Page 20 of 44 Privacy and Access Task Force November 2006 

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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Page 22 of 44 Privacy and Access Task Force November 2006 

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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Page 23 of 44 Privacy and Access Task Force November 2006 

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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Page 24 of 44 Privacy and Access Task Force November 2006 

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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Page 25 of 44 Privacy and Access Task Force November 2006 

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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Page 30 of 44 Privacy and Access Task Force November 2006 

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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Page 31 of 44 Privacy and Access Task Force November 2006 

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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Page 35 of 44 Privacy and Access Task Force November 2006 

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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Page 37 of 44 Privacy and Access Task Force November 2006 

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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Page 39 of 44 Privacy and Access Task Force November 2006 

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. 
Draft-Model Access Rules with Commentary 

Obligation of Vendors Providing Information Technology Support 

Page 40 of 44 Privacy and Access Task Force November 2006 

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 
Draft-Model Access Rules with Commentary 

Obligation of Vendors Providing Information Technology Support 

Page 41 of 44 Privacy and Access Task Force November 2006 

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, 
Draft-Model Access Rules with Commentary 

Obligation of the Court to Inform and Educate 

Page 42 of 44 Privacy and Access Task Force November 2006 

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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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. 
Draft-Model Access Rules with Commentary 

Obligation of the Court to Inform and Educate 

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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.