North Dakota Code 12-47-36 – Records exempt – Confidential – Exceptions
1. The case history records of the department of corrections and rehabilitation or its divisions or departments relating to persons in the custody or under the supervision and management of the division of adult services of the department of corrections and rehabilitation are exempt records as defined in section 44-04-17.1. Upon application to the district court, with service of the application on the department of corrections and rehabilitation and opportunity for the department to submit a written response, the court may order the inspection of a case history record unless there is a showing by the department of corrections and rehabilitation that a proper and legitimate reason exists for denying inspection of the case history record. If the court issues an order allowing inspection, the court shall allow the department of corrections and rehabilitation to remove all identifying information that may create a risk of harm to property or to any person. As used in this section, “case history record” means any record of a person in the custody or under the supervision and management of the division of adult services of the department of corrections and rehabilitation except for medical, psychological, and treatment records and legal files. The term includes inmate disciplinary proceedings, administrative and disciplinary segregation placements, institutional and criminal investigation reports, supervision histories, job placements, education programs, inmate financial accounts under section 12-48-15, and protective management cases.
Terms Used In North Dakota Code 12-47-36
- Attachment: A procedure by which a person's property is seized to pay judgments levied by the court.
- Conviction: A judgement of guilt against a criminal defendant.
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Department: means the department of corrections and rehabilitation. See North Dakota Code 12-55.1-01
- following: when used by way of reference to a chapter or other part of a statute means the next preceding or next following chapter or other part. See North Dakota Code 1-01-49
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Individual: means a human being. See North Dakota Code 1-01-49
- Litigation: A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.
- Organization: includes a foreign or domestic association, business trust, corporation, enterprise, estate, joint venture, limited liability company, limited liability partnership, limited partnership, partnership, trust, or any legal or commercial entity. See North Dakota Code 1-01-49
- Pardon: means the removal of punishment or custody imposed upon a person for the commission of an offense. See North Dakota Code 12-55.1-01
- Person: means an individual, organization, government, political subdivision, or government agency or instrumentality. See North Dakota Code 1-01-49
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Property: includes property, real and personal. See North Dakota Code 1-01-49
- Rule: includes regulation. See North Dakota Code 1-01-49
- seal: includes an impression of such seal upon the paper alone as well as upon wax or a wafer affixed thereto. See North Dakota Code 1-01-38
- Sex: means the biological state of being male or female, based on the individual's nonambiguous sex organs, chromosomes, or endogenous hormone profiles at birth. See North Dakota Code 1-01-49
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See North Dakota Code 1-01-49
- United States: includes the District of Columbia and the territories. See North Dakota Code 1-01-49
- written: include "typewriting" and "typewritten" and "printing" and "printed" except in the case of signatures and when the words are used by way of contrast to typewriting and printing. See North Dakota Code 1-01-37
2. The medical, psychological, and treatment records of the department of corrections and rehabilitation or its divisions or departments relating to persons in the custody or under the supervision and management of the division of adult services of the department of corrections and rehabilitation are confidential, and may not be disclosed directly or indirectly to any person, organization, or agency, except as otherwise provided in this section. A district court may order the inspection of medical, psychological, and treatment records, or parts of those records, upon application to the court and a showing that there is a proper and legitimate purpose for the inspection of the records, with service of the application on the department of corrections and rehabilitation and opportunity for the department of corrections and rehabilitation to submit a written response.
3. Notwithstanding any other provisions of law relating to privilege or confidentiality, except for the confidentiality requirements of federal drug and alcohol treatment and rehabilitation laws, the following persons, organizations, or agencies without prior application to the court may inspect case history, medical, psychological, or treatment records:
a. The governor; b. The pardon advisory board, if the governor has appointed a pardon advisory board; c. The parole board; d. Any division, department, official, or employee of the department of corrections and rehabilitation; e. Another state receiving a parolee or probationer under the provisions of chapter 12-65; f. A federal, state, regional, or county correctional facility receiving physical custody of a person under the legal custody of the department of corrections and rehabilitation; g. The employees in the office of the attorney general and investigators, consultants, or experts retained by the state; h. The risk management division of the office of management and budget for the purpose of investigating and defending actions or claims under chapter 32-12.2; i. The district court of the county where the judgment of conviction was entered; j. A state or federal court where a person who is or was in the custody or under the supervision and management of the adult services division of the department of corrections and rehabilitation has commenced litigation and, the parties, their counsel, and representatives of the parties in proceedings, if the records are relevant to the litigation and the subject of the records has signed an authorization; k. A criminal justice agency as defined in section 44-04-18.7; l. The United States social security administration and veterans administration; or
m. A state, federal, or tribal agency that evaluates sex offenders for civil commitment or assesses sex offender risk level for registration.
4. Records with respect to the person’s identity, location, legal files except records under court seal, criminal convictions, or projected date of release, except for the records of a person who is under protective management, are open records.
5. Medical, psychological, or treatment records may be disclosed without prior application to the court to a public hospital or treatment facility, the department of health and human services, a community behavioral health program, a vocational rehabilitation program, a transitional living facility, or a licensed private medical or treatment facility, when necessary for the evaluation, treatment, or care of a person who is or who has been in the custody of, or is or who has been under the supervision and management of, the adult services division of the department of corrections and rehabilitation.
6. A criminal defendant‘s presentence investigation report, together with any attachment or addendum, is subject to rule 32 of the North Dakota Rules of Criminal Procedure and any amendments made thereto.
7. The parole board may permit the inspection of a person’s preparole report, or parts of the report, prepared for the parole board.
8. Any person, organization, or agency receiving exempt or confidential records under this section shall maintain the closed or confidential nature of the records and may not redisclose the records.
9. The department of corrections and rehabilitation shall maintain the confidentiality of witness protection program records and legal files under seal.
10. The medical, psychological, and treatment records of the department relating to persons in the custody or under the supervision and management of the division of adult services of the department of corrections and rehabilitation may be disclosed for the purpose of conducting research and educational activities. A person conducting research or educational activities may not redisclose identifying information received under this subsection.
11. Notwithstanding any other provision of law relating to privilege or confidentiality, except for the confidentiality requirements of federal drug and alcohol treatment and rehabilitation laws, if the department of corrections and rehabilitation approves, the following individuals, organizations, or agencies without prior application to the court may inspect case history, medical, psychological, or treatment records:
a. The emergency contact or next of kin of an adult in custody who has a serious or terminal medical condition; b. The guardian, conservator, or an individual with a medical power of attorney of an adult in custody or adult under supervision; c. If an adult in custody or former adult in custody provides written authorization, an individual, organization, or entity assisting the adult in custody or former adult in custody with social services, housing, behavioral health or medical services, employment, education, child care, or transportation; and d. The court.