Indiana Rules of Court
Rules on
Access to Court Records
Effective
January 1, 2024
Find confidentiality & public
access forms at courts.in.gov
Table of
Contents
Rule 2: Who Has
Access Under This Rule.
Rule 5: Records
Excluded From Public Access.
Rule 6: Excluding
Other Court Records From Public Access.
Rule 7: Procedures
for Excluding Exhibits and Testimony From Public Access.
Rule 8: Consent to Release, Failure To
Exclude, Improper Exclusion, and Sanctions.
Rule 9: Obtaining
Access to Court Records Excluded from Public Access.
Rule 10: List of
Excluded Records and Documents.
Rule 12: Immunity
for Disclosure of Protected Information.
(A)
Pursuant to the inherent authority of the Indiana Supreme Court and pursuant to
the Indiana Access to Public Records Act, this rule governs public access to,
and confidentiality of, Court Records. This rule applies to everyone who
creates a Court Record as defined in Rule 3(A). Except as otherwise provided by
this rule, access to Court Records shall be governed by the Indiana Access to
Public Records Act.
(B)
The purposes of this rule are to:
(1) Contribute to public safety;
(2) Protect individual Due Process
rights and privacy interests;
(3) Minimize the risk of injury to
individuals;
(4) Promote accessibility to Court
Records;
(5) Promote governmental
accountability and transparency;
(6) Protect proprietary business
information; and
(7) Make the most effective use of
Court and Clerk of Court staff.
(C)
This rule applies to Court Records and everyone who creates a Court Record as
defined in Rule 3. This rule does not authorize or prohibit access to
information gathered, maintained, or stored by a non-judicial governmental
agency or other entity.
(D)
Disputes arising under this rule shall be determined in accordance with this
and, to the extent not inconsistent with this rule, by all other rules of
procedure, evidence, and appeal.
(E)
Clerks of Court and courts need not redact or restrict information that was
otherwise public in Case Records and Court Administrative Records created
before January 1, 2005.
The
objective of this rule is to provide maximum public accessibility to Court
Records, taking into account public policy interests that are not always fully
compatible with unrestricted access. This rule attempts to balance competing
interests and recognizes that 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. This rule
recognizes there are strong societal reasons for allowing Public Access to
Court Records and denial of access could compromise the judiciary's role in
society, inhibit accountability, and endanger public safety.
This rule starts from the presumption
of open Public Access to Court Records. In some circumstances; however, there
are public safety and privacy reasons for restricting access to these records.
This rule recognizes that there are times when access to information may lead
to, or increase the risk of, harm to individuals. However, given the societal
interests in access to Court Records, this rule also reflects the view that any
restriction to access shall be implemented in a manner tailored to serve the
interests in open access. It is also important to remember that, generally, at
least some of the persons in a court case are not in court voluntarily, or a party
to the action. Care shall be taken that the privacy rights and interests of
such involuntary parties or ‘third’ persons are not unduly compromised.
Subsection (C) is intended to assure
that Public Access provided under this Rule does not apply to 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 is governed by the law and the
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 or shared databases does not, by
itself, make the information in Court Records subject to this rule. The Indiana Office of Judicial
Administration may provide advisory information to individuals or entities
about the provisions, restrictions, and limitations of this rule.
(A)
All persons have access to Court Records as provided in this rule, except as
provided in subsection (B) of this rule.
(B)
The following persons, in accordance with their functions within the judicial
system, may have greater access to Court Records:
(1) Court, Court agency or Clerk of
Court employees, including courts of the United States of America and their
related court agencies and clerk of court employees;
(2) private or governmental persons
or entities who assist a court in providing court services;
(3) public agencies whose access to
Court Records is defined by other statutes, rules, orders
or policies;
(4) the parties to a case or their
lawyers with respect to their own case; and
(5) prospective
lawyers in juvenile paternity cases and the lawyers’ agents, upon the lawyer’s
filing with the court an Assurance of Confidentiality in substantial
compliance with the form appended to this Rule.
Subsection (A) provides the general
rule that all persons, including members of the general public, the media, and
commercial and noncommercial entities, are entitled to the same basic level of
access to Court Records. Access to Court Records is not determined by who is
seeking access or the purpose for seeking access, although some users, such as
court employees or the parties to a particular case, and their lawyers, may
have greater access to those particular records than is afforded the general
public.
Subsection (B) provides the exception
to the general rule and specifies the entities and persons for whom courts may
provide greater access for effective management of the judicial system and the
protection of the right to a fair trial.
For purpose of this rule:
(A)
“Court Record” means both Case Records and Court Administrative Records.
(B)
“Case Record” means any document, information, data, or other item created,
collected, received, or maintained by a Court, Court agency or Clerk of Court
in connection with a particular case.
(C)
“Court Administrative Record” means any document, information, data, or other
item created, collected, received, or maintained by a Court, Court agency, or
Clerk of Court pertaining to the administration of the judicial branch of
government and not associated with any particular case.
(D) “Court” means the Indiana Supreme
Court, Court of Appeals, Tax Court, and all Circuit, Superior, Probate, City,
Town, or Small Claims Courts.
(E) “Clerk of Court” means the Clerk
of the Indiana Supreme Court, Court of Appeals, and Tax Court, the Clerk of a
Circuit, Superior, or Probate Court, the Clerk of a City or Town Court, and the
Clerk of a Marion County Small Claims Court, including staff.
(F) “Public Access” means the process
whereby a person may inspect and copy a Court Record.
“Case Record” refers to records
connected with a particular case. It does not include other records maintained
by the Clerk of Court, including, but not limited to, election records,
marriage and other license functions; copies of notary bonds; oaths and
certificates of public officials other than oaths of judicial officers and
attorneys; lists, including those for distressed sales, licensed child placing
agencies; reports of perpetual care of cemetery endowment accounts; and
certificates of inspection and compliance of chemicals and chemical tests
results and certifications of breath test operators; delinquency personal
property taxes; hunting and fishing licenses; conflict of interest statements,
passports; and the filing of reports from state agencies, such as the Alcohol
Licensing Board.
The definition of Case Record is
medium neutral and access neutral, and is intended to apply to every Case
Record, regardless of the manner in which it was created, the form(s) in which
it is stored, or other form(s) in which the information may exist.
A “Court Administrative Record” may
include, but not be limited to, the roll of attorneys, rosters of medical
review panels and group legal services, records relating to elections to the
Judicial Nominating Commission, statistical reports, local Court rules, jury
pool list records, computer programming and algorithms, general court orders,
budget and expenditure records, and record of receipts of funds. The term
“Court agency” in subsection (C) includes without limitation the Indiana Office
of Judicial Administration and the Judicial Conference of Indiana.
(A)
A Court Record is accessible to the public except as provided in Rule 5.
(B)
This rule applies to all Court Records, regardless of the manner of creation,
method of collection, form of storage, or the form in which the record is
maintained.
(C)
If a Court Record, or portion thereof, is excluded from public access, there
shall be a publicly accessible indication of the fact of exclusion but not the
content of the exclusion. This subsection (C) does not apply to court
proceedings or Court Administrative Records which are confidential pursuant to
law.
(D) A Court may manage access to
audio and video recordings of its proceedings to the extent appropriate to
avoid substantial interference with the resources or normal operation of the
court and to comply with Indiana Judicial Conduct Rule 2.17 [former Canon
3(B)(13)]. This provision does not operate to deny to any person the right
to access a Court Record under Rule 4(A).
Many records are available remotely
at no cost as provided in Administrative Rule 9(E). The objective of this
section is to make it clear that this rule applies to information in the Court
Record regardless of the manner in which the information was created, collected
or submitted to the court. Application of this rule is not affected by the
means of storage, manner of presentation or the form in which information is
maintained. To support the general principle of open access, the application of
the rule is independent of the technology or the format of the information.
Subsection (C) requires that any and
all redactions be identified. The phrase “not public information” or an
equivalent designation may be used.
(A) Court
Records That Shall Be Excluded From Public Access In Entirety. The
following shall be excluded from Public Access and no notice of exclusion from
Public Access is required:
(1) Entire cases where all Court
Records are declared confidential by statute or other court rule;
(2) Entire cases where all Court
Records are sealed in accordance with the Access to Public Records Act;
(3) Entire cases where all Court
Records are excluded from Public Access by specific Court order entered in
accordance with Rule 6;
(4) All
Mental health cases filed pursuant to I.C. § 12- 26;
(5) Entire
cases that exclusively pertain to investigative requests and process unrelated
to a pending criminal proceeding, including but not limited to search warrants,
subpoenas ad testificandum, subpoenas duces tecum, and other investigative
requests;
(6) All
paternity records created after July 1, 1941, and before July 1, 2014, as
declared confidential by statutes in force between those date, which statutes
were amended by P.L. 1-2014, effective July 1, 2014.
(7) If
court ordered, an entire case the Clerk of Court has
opened under the wrong case type.
(B) Individual Case Records That Shall Be
Excluded From Public Access. The following shall be excluded from
Public Access by filing the document on green paper (if paper filing) or by
filing the document as a confidential document (if e-filing), along with an ACR
Form identifying the specific Rule 5 ground(s) upon which exclusion is based:
(1) Case Records declared
confidential or excluded from Public Access pursuant to federal law;
(2) Case Records excluded from Public
Access or declared confidential by Indiana statute or other court rule;
(3) Case
Records excluded from Public Access pursuant to 5(A) or by specific Court order
entered in accordance with Rule 6;
(4) Case
Records sealed in accordance with the Access to Public Records Act;
(5) Case
Records for which a statutory or common law privilege has been asserted and not
waived or overruled;
(6) Case
Records created or maintained by an agency or program for pre-trial release and
supervision and problem-solving court supervision;
(7) Records
in a pending matter that pertain to permissible ex parte proceedings,
post-charging investigatory requests for process, or requests for in
camera review, and that have been ordered confidential by the trial
judge;
(8) Medical
records compiled or created by a medical service provider and examiner reports
pursuant to Trial Rule 35;
(9) Mental
health records compiled or created by a mental health services provider for
treatment purposes;
(10) Drug
or substance abuse records, including test results, when performed at the
direction of a substance abuse treatment program provider or a court or court
program governed by 42 CFR Part 2.
(11) Photographs,
film, video recordings, or other similar mediums showing a live individual’s
uncovered genitals, pubic area, buttocks, or female post-pubescent nipple;
(12) Photographs,
film, video recordings, or other similar mediums showing a live individual
engaging in or being subjected to sexual conduct;
(13) Guardian
ad litem/court appointed special advocate reports, Parenting Coordinator
reports, and custody evaluation reports.
(C) Personal Information of
Litigants, Witnesses, and Children:
(1) Unless
necessary to the disposition of the case, the following information shall be
redacted, and no notice of exclusion from Public Access is required:
(a) Complete
Social Security Numbers of living persons;
(b) Complete
account numbers, personal identification numbers, and passwords.
If
the information is necessary to the disposition of the case, the document
containing the confidential information shall be filed on green paper (if paper
filing) or filed as a confidential document (if e-filed). A separate document
with the confidential information redacted shall be filed on white paper (if
paper filing) or filed as a public document (if e-filing). A separate ACR Form
identifying the information excluded from public access and the Rule 5 grounds
for exclusion shall also be filed.
(2) The
names of child witnesses in cases involving sex offenses shall be excluded from
public access, and any references shall be replaced with initials or similar
designation that ensures their anonymity, with no notice of exclusion from
Public Access required. Names shall not be redacted in protection order cases
or on no contact orders.
(3) Addresses
(mail or email), dates of birth, and phone numbers of natural persons who are
witnesses or victims in criminal, juvenile, or civil protection order
proceedings shall be excluded from public access. The document containing the
confidential information shall be filed on green paper (if paper filing) or
filed as a confidential document (if e-filed). A separate document with the
confidential information redacted shall be filed on white paper (if paper
filing) or filed as a public document (if e-filing). A separate ACR Form
identifying the information excluded from public access and the Rule 5 grounds
for exclusion shall also be filed.
(D) Court Administrative Records That Must Be
Excluded From Public Access. The following Court Administrative Records are
confidential and must be excluded from Public Access:
(1) Case
Records excluded in 5(C);
(2) Court
Administrative Records excluded from Public Access or declared confidential by
Indiana statute or other court rule;
(3) Attorney
residence addresses and email addresses provided to
the Clerk of the Supreme Court pursuant to Admission & Discipline Rule 2
except for such administrative purposes approved by the Chief Administrative
Officer;
(4) Places
of residence of judicial officers, clerks and other employees of courts and
clerks of court, unless the person or persons about whom the information
pertains waives confidentiality;
(5) All
personal notes, organizers, or calendars; electronic communications, including
without limitation email, text messages, photographs, and all related
electronic data; and deliberative material of judges, jurors, court staff, and
judicial agencies, whether recorded electronically or on paper.
(E) Court Records That Shall Be Temporarily Excluded
From Public Access.
(1) The
following shall be excluded from Public Access and no notice of exclusion from
Public Access is required: Entire criminal cases when a request to exclude Case
Records from Public Access is filed contemporaneously with a request for an
arrest warrant. When this request is made, the request and the Court Record
will be rendered confidential until the Court rules on the request.
(a) When
probable cause to justify issuance of an arrest warrant has been established,
the Case Records shall be publicly accessible unless the judge determines that
the facts presented in the request for exclusion from Public Access support a
reasonable belief that public disclosure will increase the risk of flight by
the defendant, create an undue risk of harm to the community or a law
enforcement officer, or jeopardize an on-going criminal investigation.
(b) An
order excluding Public Access issued under this subsection shall expire
immediately upon the arrest of the defendant.
(2) The
following shall be excluded from Public Access by filing the document on green
paper (if paper filing) or by filing the document as a confidential document
(if e-filing), along with an ACR Form identifying this subsection, Rule 5(E)(2)
as the ground(s) upon which exclusion is based: Court Records related to
violations of conditions of post-conviction supervision when a request to
exclude the records from Public Access is filed contemporaneously with the
notice of violation and the request for arrest warrant.
(a) When
probable cause to justify issuance of an arrest warrant has been established,
the Case Records shall be publicly accessible unless the judge determines that
the facts presented in the request for exclusion from Public Access support a
reasonable belief that public disclosure will increase the risk of flight by
the defendant, create an undue risk of harm to the community or a law
enforcement officer, or jeopardize an on-going criminal investigation.
(b) An
order excluding Public Access issued under this subsection shall expire
immediately upon the arrest of the defendant.
As noted
previously, these Rules start from the presumption of open Public Access to
Court Records. To address those limited circumstances where federal statute,
state statute, or court rule has declared Court Records to be confidential,
this section provides the mechanism by which these confidential Court Records
are to be excluded from Public Access.
A court cannot exclude records otherwise accessible
to the public because the parties agree to do so or because the parties have
entered into a Trial Rule 26(C) protective order. A court has only two ways to
exclude otherwise accessible records from Public Access: sealing the records
pursuant to Indiana Access to Public Records Act; or entering an Order
Excluding Court Records from Public Access pursuant to the specific
requirements in Rule 6.
Rule 5(A) begins by recognizing that, in some
instances, an entire case shall be excluded from Public Access because all
Court Records have been declared confidential, but Rules 5 (B), (C), (D) and
(E) make clear that in most instances it is only individual Case or
Administrative Records that have been declared confidential. A court may take
judicial notice of records that are excluded from Public Access, including
records in cases where all Court Records have been declared confidential, such
as juvenile cases. Ind. Evid. Rule 201(b)(5).
Rule
5(A)(7) is available only to the Clerk of Court to exclude from public access
an entire case erroneously opened with a wrong case type immediately upon
discovering the mistake. The Clerk shall then consult with a judge for final
approval and shall make an appropriate entry. Parties cannot use Rule 5(A)(7)
to bypass the specific requirements in Rule 6 for excluding an entire case or
excluding Court Records from public access.
Rule
5(B) provides the specific procedures for excluding Court Records from Public
Access when the entire Court Record is filed, “locked”, and excluded from
Public Access. The party or person submitting the confidential record is
required to provide separate, written notice identifying the grounds upon which
exclusion is based. See ACR Form. Simply filing the document and “locking” it
does not satisfy the notice requirement. A person looking at the case will see
that a document is excluded in its entirety from the Court Record, and the
person must also see ACR Form stating what document was excluded and why.
Filers
will use one Form (“Form ACR”) for all purposes. The Form ACR is found in the
Appendix to the Indiana Rules on Access to Court Records.
The
reference to “court rules” in Rule 5(B)(2) does not refer to local court rules.
Counties cannot impose local rules that conflict with the Indiana Rules on
Access to Court Records.
Rule
5(C)(1) allows a party or person to redact Social Security Numbers, account
numbers, Personal Identification Numbers, and passwords without filing a
separate, written notice of exclusion, as long as the court does not need the
information to dispose of the case.
When
Rule 5(C)(1) requires both a Public Access Version and a Non-Public Access
Version, the party must file a Public Access Version and Non-Public Access
Version. The Public Access Version is filed with the confidential information
redacted (if it is only part of a page) or omitted (if it is a whole page). If
a whole page is omitted, some type of notation shall be made at the precise
place in the Public Access version indicating where the omission occurred. The
Non-Public Access version is to be “locked” and shall contain the confidential
material redacted or omitted from the Public Access version. The party or
person submitting the confidential record is required to provide separate,
written notice identifying the grounds upon which the exclusion is based. See
ACR Form.
Non-Public
Access documents containing Court Records that are excluded from Public Access
must be identified with a header, label, or stamp that states, “CONFIDENTIAL
PER ACCESS TO COURT RECORDS RULE 5” or “EXCLUDED FROM PUBLIC ACCESS PER ACCESS
TO COURT RECORDS RULE 5.” As an example, when a subpoena is returned after
service, the return will contain the victim’s full name and address. This
heading notifies individuals who are processing the document to “lock” the
document and maintain its exclusion from Public Access.
Rule
5(C)(2) allows a party or person to replace the name of child witnesses in
cases involving sex offenses with initials or other identifiers without filing
a written Notice of Exclusion. In some cases, using initials will identify the
child victim, and so the Rule gives flexibility to craft a method to protect
the child’s identity.
In Rule
5(C)(3) the term “juvenile” refers to juvenile delinquency, status, and
miscellaneous case types. This subsection does not affect CHINS or TPR case
types because those cases are confidential in their entirety under Rule
5(A)(1). Juvenile paternity cases created between July 1, 1941 and July 1, 2014
are confidential under Rule 5(A)(6).
Rule
5(B)(8) excludes all medical records from Public Access in their entirety, in
every proceeding, unless the person consents to having the records accessible
to the public. This exclusion includes reports from examinations done pursuant
to Trial Rule 35. If the public has an interest in seeing the records, Rule 9
allows someone to petition the court for access to the records.
Rule
5(B)(9) excludes from Public Access mental health records compiled for
treatment purposes. Reports for competency to stand trial, or for purposes of
the insanity defense, remain accessible to the public.
Reports
related to the defendant’s treatment while undergoing the process of restoration
to competency are treatment records and are excluded from Public Access. If the
defendant does not regain competency, regular commitment proceedings are
initiated under a mental health case, which is excluded from Public Access in
its entirety.
In Rule
5(B)(11) the term “uncovered” means visible, that is, unobscured by clothing,
censor bars, or other similar coverings. The images excluded from public access
in Rule 5(B)(11) and (12) are limited to actual visual representations. Subparts
(11) and (12) do not include a painting, drawing, or other similar
representation.
Indiana
Probation Standard 1.4 provides that information in probation files is
confidential and may only be released in accordance with the Rules on Access to
Court Records, state and federal statutes and rules, and policies adopted by
the Judicial Conference of Indiana.
(A) In extraordinary circumstances, a Court Record that
otherwise would be publicly accessible may be excluded from Public Access by a
Court having jurisdiction over the record. A verified written request to
prohibit Public Access to a Court Record may be made by any person affected by
the release of the Court Record. The request shall demonstrate that:
(1) The
public interest will be substantially served by prohibiting access;
(2) Access
or dissemination of the Court Record will create a significant risk of
substantial harm to the requestor, other persons or
the general public; or
(3) A
substantial prejudicial effect to on-going proceedings
cannot be avoided without prohibiting Public Access.
When
this request is made, the request and the Court Record will be rendered
confidential for a reasonable period of time until the Court rules on the
request.
(B) Notice and Right to Respond.
(1) The
person seeking to prohibit access has the burden of providing notice to the
parties and such other persons as the Court may direct.
(2) The
person seeking to prohibit access shall provide proof of notice to the Court or
the reason why notice could not or should not be given consistent with the
requirements found in Trial Rule 65(B).
(3) A
party or person to whom notice is given shall have twenty (20) days from
receiving notice to respond to the request.
(C) Public Hearing.
(1) A
Court may deny a request to prohibit Public Access without a hearing.
(2) If
the Court does not initially deny the request, it shall post advance public
notice of the hearing consistent with the notice requirements found in the
Access to Public Records Act.
(3) Following
public notice, the Court shall hold a hearing on the request to prohibit Public
Access to a Court Record.
(D) Written Order. Following a hearing, a Court may
grant a request to prohibit Public Access by a written order that:
(1) States
the reasons for granting the request;
(2) Finds
the requestor has demonstrated by clear and convincing evidence that any one or
more of the requirements of Rule 6(A) have been satisfied;
(3) Balances
the Public Access interests served by this rule and the grounds demonstrated by
the requestor; and
(4) Uses
the least restrictive means and duration when prohibiting access.
Rule 6
addresses those extraordinary circumstances in which information that is
otherwise publicly accessible nonetheless is to be excluded from Public Access.
This section generally incorporates a presumption of openness and requires
compelling evidence to overcome this presumption, as well as public notice, a
public hearing, and a written order containing specific findings. While a
request made under Rule 6 treats the Court Record as confidential from the time
of filing or tendering until the court rules on the request, parties should be
aware that their request is not retroactive. Copies of the Court Record already
may have been disseminated prior to any Rule 6 request, and action taken under
Rule 6 will not affect those records.
Every
word spoken in court may be transcribed. Thus, trial courts and attorneys are
encouraged to discuss confidentiality concerns before presenting evidence. For
example, in a case with a child witness who is protected under Rule 5(C)(2), a
record could be made that initials or some other identifying information will
be used if a transcript is prepared.
When a
transcript is prepared in a Rule 5(A) confidential case type, the Court
Reporter need not make any redactions or changes because the entire transcript
will be confidential.
(A) Exhibits. A Court Record tendered or admitted into
evidence during a hearing, trial, or an in camera review that is to
be excluded from Public Access shall be accompanied by separate written notice
identifying the specific Rule 5 ground(s) upon which exclusion is based. See
ACR Form.
(B) Transcript on appeal.
(1) If
any oral statement(s) contained in the transcript on appeal is to be excluded
from Public Access, then during the hearing or trial, the Court Reporter shall
be given notice of the exclusion and the specific Rule 5 ground(s) upon which
that exclusion is based. If notice was not provided during the hearing or
trial, any party or person may provide written notice in accordance with
Appellate Rules 28(F)(3) or (4).
(2) Any in camera
discussions during a hearing or trial, pursuant to Jury Rule 10 shall be
excluded from Public Access.
(3) The
Court Reporter shall comply with Appellate Rules 28(F) and 29(D) when preparing
the transcript on appeal.
The Rule
7 notice requirements for excluding oral statements contained in a transcript
apply only to transcripts filed with the Clerk by the Court Reporter for use on
appeal. The requirements of this provision do not apply to private transcripts
that are never filed with the Clerk. If a party or person thereafter files or
tenders that private transcript to the Clerk or Court, then the notice
requirements in Rule 7 will apply.
(A) Consent to Release Otherwise Confidential Court
Record to Public Access. A party or person affected by the release of the Court
Record may affirmatively consent to make otherwise confidential records
accessible to the public. The consent must be in writing, if the party or
person is filing a Court Record with the Court. The party or person must give
verbal consent if the otherwise confidential information is presented during a
hearing.
(B) Failure to exclude Court Record from Public
Access.
(1) The
right to exclude a Court Record that is expressly declared confidential
pursuant to 5(A), (B), (C), (D), or (E) is never forfeited by the failure to
comply with any provision of Rule 5.
(2) Immediately
upon learning that a Court Record declared confidential pursuant to 5(A), (B),
(C), (D), or (E) was not excluded from Public Access, the party submitting such
Court Record shall comply with the requirements of Rule 5 to ensure proper
exclusion.
(C) Improper exclusion of Court Record from Public
Access.
(1) Only
Court Records declared confidential pursuant to 5(A), (B), (C), (D), and (E)
may be excluded from Public Access.
(2) If
a court determines that Court Records are excluded from Public Access without
first satisfying 5(A), (B), (C), (D), or (E), the Court Records shall be made
available for Public Access seventy-two hours after notice to the parties and
any person affected by the release, unless the requirements of Rule 6 are
thereafter satisfied.
(3) If
a court denies a Rule 6 request to exclude a Court Record from Public Access or
if a Court Record is required to be made available for Public Access pursuant
to 8(C)(2), the party that originally submitted the Court Record as a
Non-Public Access document is responsible for immediately resubmitting the
Court Record as a Public Access Document.
Rule 8
permits waiver of confidentiality by the party or person affected by the
release of the Court Record, but in all other instances in which a Court Record
has been declared confidential pursuant to Rule 5, such confidentiality is not
forfeited.
Rule
8(A) is a new provision. A party or person affected by the release of otherwise
confidential information may consent to its release by an oral statement on the
record or in writing. The consent could state: “I consent to the [ name of
information], which is otherwise confidential, being part of the public Court
Record in this case,” or other similar language.
If a
court determines that a party has improperly excluded Court Records from Public
Access without first satisfying these rules, those records shall be made
available for Public Access unless, within 72 hours after notice of the
improper exclusion has been sent, the party or person affected by the release
of such records files a verified request to exclude pursuant to Rule 6.
(A) A Court Record that is excluded from Public Access
under this rule may be made accessible if:
(1) Each
person affected by the release of the Court Record waives confidentiality by
intentionally releasing such Court Record for Public Access pursuant to 8(A);
or
(2) A
Court with jurisdiction over the case declares:
(a) the
Court Record should not have been excluded from Public Access;
(b) the
Rule 6 order was improper or is no longer appropriate;
(c) the
Court Record is essential to the resolution of litigation; or
(d) disclosure
is appropriate to further the establishment of precedent or the development of
the law.
(B) A Court Record that is excluded from Public Access
under this rule also may be made accessible provided the following four
conditions are met:
(1) Verified
written request. The person seeking access to the Court Record shall file with
the Court having jurisdiction over the record a verified written request
demonstrating that:
(a) Extraordinary
circumstances exist requiring deviation from the general provisions of this
rule;
(b) The
public interest will be served by allowing access;
(c) Access
or dissemination of the Court Record creates no significant risk of substantial
harm to any party, to third parties, or to the general public;
(d) The
release of the Court Record creates no prejudicial effect to on-going
proceedings; or
(e) The
Court Record should not be excluded for Public Access under 5(A), (B), (C),
(D), or (E).
When a request is made for access to
Court Records excluded from Public Access, the Court Record will remain
confidential until the Court rules on the request.
(2) Notice
and Right to Respond.
(a) The
person seeking access has the burden of providing notice to the parties and
such other persons as the Court may direct.
(b) The
person seeking access shall provide proof of notice to the Court or the reason
why notice could not or should not be given consistent with the requirements
found in Trial Rule 65(B).
(c) A
party or person to whom notice is given shall have twenty (20) days from
receiving notice to respond to the request.
(3) Public
Hearing.
(a) A
Court may deny a request to provide access without a hearing.
(b) If
the Court does not initially deny the request, it shall post advance public
notice of the hearing consistent with the notice requirements found in the
Access to Public Records Act.
(c) Following
public notice, the Court shall hold a hearing on the request to allow access to
the Court Record.
(4) Written
Order. Following a hearing, a request to allow access to Court Records may be
granted upon the issuance of a written order that:
(a) States
the reasons for granting the request;
(b) Finds
the requestor has demonstrated by clear and convincing evidence that any one or
more of the requirements of 9(B)(1) have been satisfied; and
(c) Considers
the Public Access and the privacy interests served by this rule and the grounds
demonstrated by the requestor.
(C) A Court may place restrictions on the use or
dissemination of the Court Record to preserve confidentiality.
Rule 9
is intended to address those extraordinary circumstances in which confidential
information or information which is otherwise excluded from Public Access is to
be included in a release of information. In some circumstances, the nature of
the information contained in a record and the restrictions placed on the
accessibility of the information contained in that record may be governed by
federal or state law. This Rule is not intended to modify or overrule any
federal or state law governing such records or the process for releasing
information.
Every
person filing documents with the courts has the primary responsibility to
exclude all confidential information that they are filing with the court,
whether it belongs to the parties, their children, and witnesses. Attorneys and
litigants should be aware that judicial officers, clerks, and court staff are
not required to and cannot examine every document filed and determine
compliance with Rule 5.
The Office
of Court Services shall create and maintain a list available to judges,
attorneys, and litigants containing the Court Records, Case Records, and Other Documents
Excluded from Public Access under this Rule. This list may not be a complete listing, and it shall
advise the public and attorneys to consult state and federal law, court rules,
and case law to determine if other documents are excluded under Access to Court
Records Rule 5.
The failure
to comply with any provision of these Rules may subject counsel and/or a party
to sanctions.
When a
Judicial Officer is aware of a violation the officer is authorized and expected
to enforce this Rule.
A Court,
Judicial Officer, Clerk of Court, their employees, and agents who
unintentionally and unknowingly disclose confidential or erroneous information
are immune from liability for such a disclosure.
This
immunity provision is consistent with the immunity and protections provided by
the Indiana Access to Public Records Act.
Conversion
Table
|
Rules on Access to Court Records |
Formerly |
|
1 |
Administrative
Rule 9(A) |
|
2 |
Administrative
Rule 9(B) |
|
3 |
Administrative
Rule 9(C) |
|
4 |
Administrative
Rule 9(D) |
|
5 |
Administrative
Rule 9(G) |
|
6 |
Administrative
Rule 9(G)(4) |
|
7 |
Administrative
Rule 9(G)(5)(a)(i) |
|
8 |
Administrative
Rule 9(G)(6) |
|
9 |
Administrative
Rule 9(G)(7) |
|
10 |
New |
|
11 |
New |
|
12 |
Administrative
Rule 9(J) |