administrative rule 9(g)€¦ · administrative rule 9(g)(5).” b) “appellate rule 23. filing i....

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Administrative Rule 9(G)(effective January 1, 2015)

Maggie L. SmithMember, Frost Brown Todd LLC

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Table of Contents

I. Key definitions .......................................................................................................................................................................... 1

II. Presumption that, except in limited circumstances, all Court Records will be open andavailable to the public............................................................................................................................................................ 1

III. Two different categories of "excluded" at issue in A.R. 9(G) ................................................................................. 2

A. Cases/information that “must” be excluded because a statute, SupremeCourt rule, or common law mandates confidentiality .............................................................. 2

B. Cases/information that parties “want” excluded, but for which there isno existing statute or rule declaring it to be confidential. ...................................................... 3

IV. Procedure for excluding information from public access once determination has beenmade that information is, in fact, eligible for exclusion........................................................................................... 7

A. Separate written notice of the submission of confidential information. .......................... 7

B. Green paper requirements................................................................................................................... 8

V. Providing Public Access to Court Records that are currently excluded from PublicAccess. .......................................................................................................................................................................................... 9

A. Waiver of exclusion................................................................................................................................. 9

B. Sua sponte judicial determination that Court Record should no longer beexcluded from Public Access ............................................................................................................... 9

C. Third-party request to access otherwise excluded Court Records ...................................10

D. Restrictions on scope of Public Access granted under 9(G)(7) whenCourt Record would otherwise be excluded...............................................................................11

VI. Misc..............................................................................................................................................................................................11

A. Waiver of confidentiality.....................................................................................................................11

B. Forfeiture...................................................................................................................................................11

C. Improper filing of Court Records on green paper. ...................................................................11

D. Sanctions for non-compliance ..........................................................................................................12

VII. Text of new Administrative Rule 9(G) ..........................................................................................................................13

VIII. FORMS: Administrative Rule 9(G) & Appellate Rule 28 .......................................................................................18

IX. Access to Public Records Act-Indiana Code §5-14-3-5.5, Sealing of certain records bycourt; hearing; notice...........................................................................................................................................................24

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I. Key definitions

1. Court Record “means both Case Records and Court Administrative Records.”IND.ADMIN.R. ("A.R.") 9(C)(1).

2. 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 aparticular case.” A.R. 9(C)(2).

a) NOTE: This definition is broad enough to include anything tendered to a Courtor the Clerk, even if not formally “filed” and would include, for example,documents tendered for in camera review.

3. Court Administrative Record “means any document, information, data, or other itemcreated, collected, received, or maintained by a Court, Court agency, or Clerk of Courtpertaining to the administration of the judicial branch of government and notassociated with any particular case.” A.R. 9(C)(3).

4. Public access “means the process whereby a person may inspect and copy theinformation in a court record.” A.R. 9(C)(6).

NOTE: A.R. 9 uses the term “excluded from Public Access” instead of “sealing.” The term“sealing” is only used in connection with requests granted in accordance with the Access toPublic Records Act (I.C. §5-14-3-5.5).

II. Presumption that, except in limited circumstances, all Court Records will be open andavailable to the public.

1. A.R. 9 starts from the presumption that every Court Record will be open to the public.

a) "This rule starts from the presumption of open Public Access to Court Records."A.R. 9(A), Commentary.

b) "This rule recognizes there are strong societal reasons for allowing PublicAccess to Court Records and denial of access could compromise the judiciary'srole in society, inhibit accountability, and endanger public safety." A.R. 9(A),Commentary.

2. A.R. 9, however, recognizes there are limited circumstances (which the Commentarycalls “public policy interests”) where such openness can be harmful and, therefore,Public Access will be excluded in these circumstances, which are discussed in A.R.9(G)(1), (2), (3), and (4). A.R. 9(A), Commentary.

a) “This rule attempts to balance competing interests and recognizes thatunrestricted access to certain information in Court Records could result in anunwarranted invasion of personal privacy or unduly increase the risk of injuryto individuals and businesses." A.R. 9(A), Commentary.

b) "It is also important to remember that, generally, at least some of the parties ina court case are not in court voluntarily, but rather have been brought intocourt by plaintiffs or by the government." A.R. 9(A), Commentary.

c) "A person who is not a party to the action may also be mentioned in the CourtRecord. Care should be taken that the privacy rights and interests of suchinvoluntary parties or ‘third’ persons are not unduly compromised." A.R. 9(A),Commentary.

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3. The Trial and Appellate Rules now expressly reflect this balance:

a) “Trial Rule 5. Service and Filing of Pleading and Other Papers.(G) Confidentiality of Court Records .

(1) Court Records are accessible to the public, except as provided inAdministrative Rule 9(G).

(2) Any Court Record excluded from Public Access pursuant toAdministrative Rule 9(G) must be filed in accordance withAdministrative Rule 9(G)(5).”

b) “Appellate Rule 23. FilingI. Confidentiality of Court Records on Appeal.

(1) Court Records are accessible to the public, except as provided inAdministrative Rule 9(G).

(2) If a Court Record was excluded from Public Access in the trial court inaccordance with Administrative Rule 9(G), the Court Record shallremain excluded from Public Access on appeal unless the court onappeal determines the conditions in Administrative Rule 9(G)(7) aresatisfied.

(3) Any Court Record excluded from Public Access on appeal must be filedin accordance with Administrative Rule 9(G)(5).”

III. Two different categories of "excluded" at issue in A.R. 9(G):1. Cases/information that “must” be excluded because a statute, Supreme Court rule, or

common law mandates confidentiality; and2. Cases/information that parties “want” excluded, but for which there is no existing statute

or rule declaring it to be confidential.

A. Cases/information that “must” be excluded because a statute, Supreme Courtrule, or common law mandates confidentiality

1. Entire cases that a statute, Supreme Court rule, or common law declares confidentialand therefore must be excluded from public access. (A.R. 9(G)(1).)

a) Examples:

(1) Juvenile proceedings

(2) Adoption proceedings

(3) CHINS proceedings

b) Procedure for exclusion:

(1) Exclusion from Public Access is self-executing.

(2) There is no hearing required.

(3) The court need not enter any written orders excluding the case frompublic access.

(4) Parties need file no notice to exclude anything in the case and need notfile anything on green paper. (See Section IV, below.)

2. In an otherwise open case, particular information that statute, Supreme Court rule, orcommon law declares confidential and therefore must be excluded from public access.(A.R. 9(G)(2) & 9(G)(3).)

a) Examples:

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(1) Many, many federal and state statutes declare information to beconfidential. (A.R. 9(G)(2)(a, b).)

(a) NOTE: A statutory declaration of confidentiality or exclusionshould be specific and often will have an additional judicialinquiry required before that confidentiality can be applied.(i) I.C. §5–14–3–4(a)(4) declares that “trade secrets” are

confidential, but before excluding, a court must make anindependent determination that the information meetsthe separate statutory criteria for being “trade secrets.”Orbitz, LLC v. Indiana Dep't of State Revenue, 997 N.E.2d98, 101 (Ind. T.C. 2013).

(ii) Ind.Code §31–39–1–1(a) declares juvenile recordsconfidential, but has exceptions. See In re T.B., 895N.E.2d 321, 340 (Ind. Ct. App. 2008)

(iii) I.C. §5–14–3–4(a)(5) states that “Confidential financialinformation” is to be excluded, but it does not identifywhat type of financial information will be deemed“confidential” and, thus, another source must be foundthat actually declares a certain type of financialinformation confidential.

(2) Information related to a statutory or common law privilege that hasbeen asserted and not waived or overruled. (A.R. 9(G)(2)(e).)

(3) Other information that the Supreme Court has declared “confidential.”

(a) See subsections A.R. 9(G)(2)(f) through (k).

(4) Court Administration Records also fall under this category.

(a) Examples: JLAP records; bar admission applications;disciplinary grievances and investigations; etc.

b) Procedure for exclusion:

(1) Exclusion from Public Access under 9(G)(2) or 9(G)(3) is self-executing,but to a more limited extent than 9(G)(1).

(2) There is no hearing required and the court need not enter any writtenorders before excluding information from public access.

(3) But, parties do need to provide notice to the Court/Clerk/CourtReporter and tender the information on green paper before it will beexcluded. (See Section IV, below.)

B. Cases/information that parties “want” excluded, but for which there is noexisting statute or rule declaring it to be confidential.

1. Examples of information that litigants often want excluded, but have no right to do so:salary or compensation terms; covenant not to compete details; settlementagreements; business or marketing strategies; divorce cases with salacious allegations;counseling records; child custody evaluations; etc.

2. If a statute or Supreme Court rule does not declare information to be confidential, thereis no right to exclude that information from public access; the only permissible way toexclude the information is to comply with every requirement in:

a) A.R. 9(G)(4); or

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b) I.C. §5-14-3-5.5 (Access to Public Records Act).

A.R. 9(G)(2)(c, d); Commentary.

NOTE: A party can always choose not to tender or file information andtherefore avoid it being publically accessible. If a party does tender or fileinformation, however, the only way to keep it excluded in the absence of astatute or rule is to comply with A.R. 9(G)(4) or the Access to Public RecordsAct

3. Parties cannot “agree” to exclude information from Public Access; nor is a Trial Rule 26Protective Order a valid Order upon which to exclude public access. See A.R. 9(G)Commentary; Travelers Cas. & Surety Co. v. U.S. Filter Corp., 895 N.E.2d 114 (Ind.2008);Angelopoulos v. Angelopoulos, 2 N.E.3d 688 (Ind.Ct.App.2013); Allianz Ins. Co. v.Guidant Corp., 884 N.E.2d 405 (Ind.Ct.App. 2008)

4. A.R. 9(G)(4) procedure

a) A.R. 9(G)(4) is limited to “extraordinary circumstances.”

b) Compliance with A.R. 9(G)(4) requires satisfying four steps; if each of the foursteps is not followed, the information cannot be excluded from public access.

(1) Step 1: Verified written request-A.R. 9(G)(4)(a). “A verified writtenrequest to prohibit Public Access to a Court Record may be made by anyperson affected by the release of the Court Record. The request mustdemonstrate that:

(i) The public interest will be substantially served by prohibitingaccess; or

(ii) Access or dissemination of the Court Record will create asignificant risk of substantial harm to the requestor, otherpersons or the general public; or

(iii) A substantial prejudicial effect to on-going proceedings cannotbe avoided without prohibiting Public Access.”

NOTE: The Verified Request (and any tendered information) areautomatically provisionally excluded from public access until the courtrules on the Request. A.R. 9(G)(4)(a) (“When this request is made, therequest and the Court Record will be rendered confidential for areasonable period of time until the Court rules on the request.”).

(2) Step 2: Notice and Right to Respond-A.R. 9(G)(4)(b).“(i) The person seeking to prohibit access has the burden of

providing notice to the parties and such other persons as theCourt may direct.

(ii) The person seeking to prohibit access must provide proof ofnotice to the Court or the reason why notice could not or shouldnot be given consistent with the requirements found in TrialRule 65(B).

(iii)A party or person to whom notice is given shall have twenty(20) days from receiving notice to respond to the request.”

(3) Step 3: Public Hearing with Advance Public Notice-A.R. 9(G)(4)(c).

“(i) A Court may deny a request to prohibit Public Access without ahearing.

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(ii) If the Court does not initially deny the request, it shall postadvance public notice of the hearing consistent with the noticerequirements found in I.C. § 5-14-2-5.”

I.C. § 5-14-2-5 provides, “The court shall notify the parties ofthe hearing date and shall notify the general public by postinga copy of the hearing notice at a place within the confines ofthe court accessible to the general public.”

(iii) “Following public notice, the Court must hold a hearing on therequest to prohibit Public Access to a Court Record.”

(4) Step 4: Written Order with specific findings-A.R. 9(G)(4)(d).After the public hearing, to grant the request to prohibit PublicAccess, the court must issue a written order that:“(i) States the reasons for granting the request;(ii) Finds the requestor has demonstrated by clear and convincing

evidence that any one or more of the requirements of 9(G)(4)(a)have been satisfied;

(iii)Balances the Public Access interests served by this rule and thegrounds demonstrated by the requestor; and

(iv)Uses the least restrictive means and duration when prohibitingaccess.”

c) Parties also need to provide notice to the Court/Clerk/Court Reporter andtender the information on green paper before it will be excluded. (See SectionIV, below.)

5. Access to Public Records Act “Sealing”

a) Purpose of Access to Public Records Act:

(1) “A fundamental philosophy of the American constitutional form ofrepresentative government is that government is the servant of the people andnot their master. Accordingly, it is the public policy of the state that all personsare entitled to full and complete information regarding the affairs ofgovernment and the official acts of those who represent them as public officialsand employees. Providing persons with the information is an essential functionof a representative government and an integral part of the routine duties ofpublic officials and employees, whose duty it is to provide the information. Thischapter shall be liberally construed to implement this policy and place theburden of proof for the nondisclosure of a public record on the public agencythat would deny access to the record and not on the person seeking to inspectand copy the record.” I.C. §5-14-3-1.

(2) Accordingly, “Any person may inspect and copy the public records ofany public agency during the regular business hours of the agency,except as provided in section 4 of this chapter.” I.C. §5-14-3-3.

(a) “Public records” means “any writing, paper, report, study, map,photograph, book, card, tape recording, or other material that iscreated, received, retained, maintained, or filed by or with a publicagency and which is generated on paper, paper substitutes,photographic media, chemically based media, magnetic or machinereadable media, electronically stored data, or any other material,regardless of form or characteristics.” I.C. §5-14-3-2(n).

(b) “Public agency” includes “Any board, commission, department,division, bureau, committee, agency, office, instrumentality, orauthority, by whatever name designated, exercising any part of the

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executive, administrative, judicial, or legislative power of the state”and “any … entity exercising … the … judicial… power of the state”. I.C.§5-14-3-2(m)(1, 2(c)).

(c) “Section 4” referenced above refers to a long list of documents andinformation the legislature has determined either must be excludedfrom Public Access (5-14-3-4(a)) or can be excluded “at the discretionof a public agency” (5-14-3-4(b)). This statute is reproduced at theend of these materials.

b) Procedure for “Sealing of certain records” pursuant to I.C. §5-14-3-5.5

(1) Three part test:

(a) Public notice(i) “Before a court may seal a public record not declared

confidential under section 4(a) of this chapter, it musthold a hearing at a date and time established by thecourt. Notice of the hearing shall be posted at a placedesignated for posting notices in the courthouse.” IC §5-14-3-5.5(c)

(b) Public hearing(i) “At the hearing, parties or members of the general public

must be permitted to testify and submit written briefs.”IC §5-14-3-5.5(d)

(c) Written Findings of Fact/Conclusions of Law(i) “A decision to seal all or part of a public record must be

based on findings of fact and conclusions of law,showing that the remedial benefits to be gained byeffectuating the public policy of the state declared insection 1 of this chapter are outweighed by proof by apreponderance of the evidence by the person seekingthe sealing of the record that:(1) a public interest will be secured by sealing the

record;(2) dissemination of the information contained in

the record will create a serious and imminentdanger to that public interest;

(3) any prejudicial effect created by disseminationof the information cannot be avoided by anyreasonable method other than sealing therecord;

(4) there is a substantial probability that sealing therecord will be effective in protecting the publicinterest against the perceived danger; and

(5) it is reasonably necessary for the record toremain sealed for a period of time.” §5-14-3-5.5(d)

(2) Parties also need to provide notice to the Court/Clerk/Court Reporterand tender the information on green paper before it will be excluded.(See Section IV, below.)

c) “Sealed records shall be unsealed at the earliest possible time after thecircumstances necessitating the sealing of the records no longer exist.” §5-14-

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3-5.5(d)

d) No forfeiture: “[T]he plain language of the Public Records Act, specificallysections 3 and 5.5, permits public records to be sealed either before or afterthey are admitted into evidence.” Bobrow v. Bobrow, 810 N.E.2d 726, 734(Ind.Ct.App.2004).

e) Yes, waiver: “We disagree with the Trustees' suggestion that, simply becauseAPRA contains no waiver provision, a public agency cannot waive theexceptions to public disclosure.” Unincorporated Operating Div. of IndianaNewspapers, Inc. v. Trustees of Indiana Univ., 787 N.E.2d 893, 918-19(Ind.Ct.App.2003).

6. Key differences between A.R. 9(G)(4) and I.C. §5-14-3-5.5 (remember, either can beused as a basis to exclude information that would not otherwise be excludable)

a) Private versus public interest: A.R. 9(G)(4)can be private or public interestprotected; §5-14-3-5.5 only deals with public interests

b) Burden of proof: A.R. 9(G)(4) requires clear and convincing evidence BUTonly one factor must be proven; §5-14-3-5.5 requires preponderance ofevidence BUT all five factors must be proven.

c) Verified Motion required: A.R. 9(G)(4)- yes; §5-14-3-5.5- no

d) Duration of exclusion/sealing: A.R. 9(G)(4)- permanently; §5-14-3-5.5-defined period of time (determined by court order) with unsealing done “at theearliest possible time.”

IV. Procedure for excluding information from public access once determination has beenmade that information is, in fact, eligible for exclusion.

A. Separate written notice of the submission of confidential information.

1. EXCEPTION: In instances where all Court Records are excluded from Public Access(i.e., the entire case is confidential under A.R. 9(G)(1)), no notice of exclusion fromPublic Access is required because the entire case is confidential. A.R. 9(G)(5)(a)(i)(b)

2. In all other instances, separate written notice is required to alert the Clerk, Court, orCourt Reporter that the Court Record should remain excluded and to provide the Courtwith the specific grounds justifying the exclusion.

a) Filing the record on green paper does not satisfy the notice requirement.

b) Pleadings or Papers filed with the Clerk: If the confidential record is in theform of a “Court Record filed with the Clerk of Court,” the record “must beaccompanied by separate written notice identifying the specific 9(G)(2) or9(G)(3) ground(s) upon which exclusion is based.” A.R. 9(G)(5)(a)(i)(a).

(1) See A.R. 9(G) Form 9-G1.

c) Exhibits: If the confidential record is in the form of a “Court Record tenderedor admitted into evidence during an in camera review, hearing, or trial,” thenthe record “must be accompanied by separate written notice identifying thespecific 9(G)(2) or 9(G)(3) ground(s) upon which exclusion is based.” A.R.9(G)(5)(a)(i)(b).

(1) See A.R. 9(G) Form 9-G2.

d) Oral statements in transcript on appeal: The following notice requirements

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apply only to transcripts filed with the Clerk by the Court Reporter for use onappeal. The requirements of this provision do not apply to private transcriptsthat are never filed with the Clerk. If a party or person thereafter files ortenders that private transcript to the Clerk or Court, then the noticerequirements discussed in the previous two sections will apply.

(1) Notice during the hearing or trial. “If any oral statement(s) contained inthe transcript on appeal is to be excluded from Public Access, thenduring the hearing or trial, the Court Reporter must be given notice ofthe exclusion and the specific 9(G)(2) or 9(G)(3) ground(s) upon whichthat exclusion is based.” A.R. 9(G)(5)(a)(i)(c).

(2) Notice after the hearing or trial. “If notice was not provided during thehearing or trial, any party or person may provide written notice inaccordance with Appellate Rules 28(A)(9)(C) or (D).” A.R.9(G)(5)(a)(i)(c).

(3) Preparation of the Transcript on appeal. “The Court Reporter mustcomply with Appellate Rules 28(A)(9) and 29(C) when preparing thetranscript on appeal.” A.R. 9(G)(5)(a)(i)(c).

B. Green paper requirements.

1. EXCEPTION: In cases where all Court Records are excluded from Public Access,nothing need be filed on green paper because the entire case is confidential. A.R.9(G)(5)(b)(iii)

2. Where only a portion of the Court Record has been excluded from Public Access therewill (generally) be two versions of the Court Record filed:

a) Public Access Version. In the Public Access version, everything is filed onwhite paper with the confidential information redacted (if it is only part of apage) or omitted (if it is a whole page). A.R. 9(G)(5)(b)(i)

(1) If a whole page is omitted, some type of notation must be made at theprecise place in the Public Access version indicating where the omissionoccurred.

b) Non-Public Access Version. This separately filed version contains theconfidential Court Record on green paper, and this version must beconspicuously marked “Not for Public Access” or “Confidential,” with thecaption and number of the case clearly designated. A.R. 9(G)(5)(b)(ii)(b)

(1) EXCEPTION: “If the omission or redaction in accordance with9(G)(5)(b)(i) is not necessary to the disposition of the case, theexcluded Court Record need not be filed or tendered in any form andonly the Public Access version is required.” A.R. 9(G)(5)(b)(ii)(a)

(a) The purpose of this provision is to avoid clogging court fileswith green paper that has no bearing on the disposition of thecase. In these instances, the redacted or omitted material neednot ever be separately tendered or filed on green paper and onlya Public Access version is required.

(b) For example, if the Public Access version is redacted to remove asocial security/financial institution number and those numbersare irrelevant to the issues, then the numbers need not beseparately provided on green paper.

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(c) Or, if pages of a corporate document were omitted because theycontained trade secrets, and only one paragraph was relevant tothe disposition of the case, then only that one paragraph needbe separately tendered on green paper.

(2) Two different formats for Non-Public Access versions:

(a) Exhibits, attachments, appendices, transcripts, evidentiarydesignations, etc.(i) If the omitted or redacted Court Record is an exhibit,

attachment, appendix, transcript, evidentiarydesignation, etc., “The separately filed or tendered Non-Public Access version shall consist only of the omitted orredacted Court Record on green paper, with a referenceto the location within the Public Access Version to whichthe omitted or redacted material pertains.” A.R.9(G)(5)(b)(ii)(b)(i)

(b) Motions, memoranda, briefs, etc.(i) If the omitted or redacted Court Record is a brief,

motion, memoranda, etc., “then the separately filed Non-Public Access version shall consist of a complete,consecutively-paginated replication including both thePublic Access material on white paper and the Non-Public Access material on green paper.”

(c) The reasoning behind treating these two types of filingsdifferently is that it is relatively easy to jump between the PublicAccess versus Non-Public Access version when the omittedconfidential information is a supporting or evidentiarydocument. But when the omitted confidential information ispart of the document containing the legal argument, thenjumping back and forth between two versions is difficult. In thislatter case only, there needs to be a single, self-containedversion.

V. Providing Public Access to Court Records that are currently excluded from PublicAccess.

A. Waiver of exclusion

“A Court Record that is excluded from Public Access under this rule may be madeaccessible if … [e]ach person affected by the release of the Court Record waivesconfidentiality by intentionally releasing such Court Record for Public Access pursuantto 9(G)(6)(a).” A.R. 9(G)(7)(a)(i).

B. Sua sponte judicial determination that Court Record should no longer beexcluded from Public Access

“A Court with jurisdiction over the case declares:

a. the Court Record should not have been excluded from Public Access;

b. the 9(G)(4) 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

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the development of the law.” A.R. 9(G)(7)(a)(ii).

C. Third-party request to access otherwise excluded Court Records

1. As the converse to A.R. 9(G)(4), “A Court Record that is excluded from Public Accessunder this rule also may be made accessible provided the following four conditions aremet:” A.R. 9(G)(7)(b).

a) Step 1: Verified written request. A.R. 9(G)(7)(b)(i)

(1) “person seeking access to the Court Record must file with the Courthaving jurisdiction over the record a verified written requestdemonstrating:

a. Extraordinary circumstances exist requiring deviationfrom 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 thirdparties, or to the general public;

d. The release of the Court Record creates no prejudicialeffect to on-going proceedings; or

e. The Court Record should not be excluded for PublicAccess under 9(G)(1), 9(G)(2) or 9(G)(3).

When a request is made for access to Court Records excluded fromPublic Access, the Court Record will remain confidential until the Courtrules on the request.” A.R. 9(G)(7)(b)(i).

b) Step 2. Notice and Right to Respond. A.R. 9(G)(7)(b)(ii)

(1) “The person seeking access has the burden of providing notice to theparties and such other persons as the Court may direct.”

(2) “The person seeking access must provide proof of notice to the Court orthe reason why notice could not or should not be given consistent withthe requirements found in Trial Rule 65(B).”

(3) “A party or person to whom notice is given shall have twenty (20) daysfrom receiving notice to respond to the request.”

c) Step 3: Public Hearing with Advance Public Notice. A.R. 9(G)(7)(b)(iii)

(1) “A Court may deny a request to provide access without a hearing.”

(2) “If the Court does not initially deny the request, it shall post advancepublic notice of the hearing consistent with the notice requirementsfound in I.C. §5-14-2-5.”

I.C. § 5-14-2-5 provides, “The court shall notify the parties of thehearing date and shall notify the general public by posting a copy ofthe hearing notice at a place within the confines of the court accessibleto the general public.”

(3) “Following public notice, the Court must hold a hearing on the requestto allow access to the Court Record.”

d) Step 4: Written Order with specific findings. A.R. 9(G)(7)(b)(iv)

(1) “Following a hearing, a request to allow access to Court Records may begranted upon the issuance of a written order that:

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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 of9(G)(7)(b)(i) have been satisfied; and

c. Considers the Public Access and the privacy interests served bythis rule and the grounds demonstrated by the requestor.”

D. Restrictions on scope of Public Access granted under 9(G)(7) when Court Recordwould otherwise be excluded.

1. In those extraordinary circumstances where a court allows Public Access to CourtRecords that would otherwise be excluded, the court may place restrictions on the useor dissemination of the Court Record to preserve some type of confidentiality.

VI. Misc.

A. Waiver of confidentiality

1. “The party or person affected by the release of the Court Record may waive the right toexclude the Court Record from Public Access.” A.R. 9(G)(6)(a)(i).

a) NOTE: Only the entity actually “affected by the release of the Court Record” canwaive the right; the conduct of a party who is not affected by the release doesnot operate as a waiver.

2. Once waiver has occurred, the party or person cannot have a change of mind andautomatically reassert the right to exclude the formerly-confidential information fromPublic Access. Instead, reassertion of the right to exclude can be done “only bycomplying with 9(G)(4).” A.R. 9(G)(6)(a)(ii).

B. Forfeiture

1. The new A.R. 9 changes existing policy and makes clear that if the legislature or a courthas declared a Court Record to be confidential and the party or person affected by therelease of the Court Record has not waived that confidentiality, then a party’s failure toproperly exclude the Court Record will not forfeit the right to exclude a Court Record.A.R. 9(G)(6)(b)(i).

2. Instead, “Immediately upon learning that a Court Record declared confidentialpursuant to 9(G)(1), 9(G)(2) or 9(G)(3) was not excluded from Public Access, the partysubmitting such Court Record must comply with the requirements of 9(G) to ensureproper exclusion.” A.R. 9(G)(6)(b)(ii).

a) Of course, if copies of the Court Record have already been disseminated to thepublic prior to realizing the Court Record should have been confidential, thereis no way to retroactively “undo” that dissemination.

C. Improper filing of Court Records on green paper.

1. If a court determines that a party has improperly filed Court Records on green paperwithout first satisfying G(1), G(2), or G(3), the court must provide notice of thisdetermination to all parties.

2. The improperly excluded records shall then be made available for Public Access sevendays after such notice was sent UNLESS, within that seven day period, the party orperson affected by the release of the records begins the process of properly excludingthe information pursuant to 9(G)(4).

a) The filing of the 9(G)(4) “Verified Request” to begin the process will allow the

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Court Record to remain excluded until the court rules on the 9(G)(4) request.A.R. 9(G)(4)(a).

b) If the court ultimately denies the 9(G)(4) request, the Court Records willautomatically become available for Public Access.

c) If the court grants the 9(G)(4) request, the Court Records will remain excludedfrom Public Access without interruption.

D. Sanctions for non-compliance

1. “The failure to comply with any provision of 9(G) can subject counsel or a party tosanctions.” A.R. 9(G)(6)(d).

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VII. Text of new Administrative Rule 9(G)

Rule 9. Access to Court Records

…

(G) Excluding Court Records From Public Access.

(1) Court Records That Must Be Excluded From Public Access In Entirety. The following must be excluded from PublicAccess:(a) Entire cases where all Court Records are declared confidential by statute or other court rule;(b) Entire cases where all Court Records are sealed in accordance with the Access to Public Records Act (I.C. § 5-

14-3-5.5);(c) Entire cases where all Court Records are excluded from Public Access by specific Court order entered in

accordance with 9(G)(4).(2) Individual Case Records That Must Be Excluded From Public Access. The following must be excluded from Public

Access:(a) Case Records declared confidential or excluded from Public Access pursuant to federal law;(b) Case Records excluded from Public Access or declared confidential by Indiana statute or other court rule;(c) Case Records excluded from Public Access by specific Court order entered in accordance with 9(G)(4);(d) Case Records sealed in accordance with the Access to Public Records Act (I.C. § 5-14-3-5.5);(e) Case Records for which a statutory or common law privilege has been asserted and not waived or overruled;(f) Complete Social Security Numbers of living persons;(g) With the exception of names, information such as addresses (mail or e-mail), phone numbers, and dates of

birth which explicitly identifies:(i) natural persons who are witnesses or victims (not including defendants) in criminal, domestic violence,

stalking, sexual assault, juvenile, or civil protection order proceedings, provided that juveniles who arevictims of sex crimes shall be identified by initials only;

(ii) places of residence of judicial officers, clerks and other employees of courts and clerks of court, unlessthe person or persons about whom the information pertains waives confidentiality;

(h) Complete account numbers of specific assets, loans, bank accounts, credit cards, and personal identificationnumbers (PINs);

(i) All personal notes, e-mail, and deliberative material of judges, jurors, court staff, and judicial agencies, andinformation recorded in personal data assistants (PDAs) or organizers and personal calendars.

(j) Arrest warrants, search warrants, indictments, and informations ordered confidential by the trial judge, priorto return of duly executed service.

(k) All paternity records created after July 1, 1941, and before July 1, 2014, as declared confidential by statutes inforce between those date, which statutes were amended by P.L. 1-2014, effective July 1, 2014.

(3) Court Administration Records That Must Be Excluded From Public Access. The following Court AdministrationRecords are confidential and must be excluded from Public Access:(a) Case Records excluded in 9(G)(2);(b) Court Administration Records excluded from Public Access or declared confidential by Indiana statute or other

court rule.(4) Excluding Other Court Records From Public Access. 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,provided that each of the following four requirements is met:(a) Verified written request. 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 must demonstrate that:(i) The public interest will be substantially served by prohibiting access; or(ii) 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(iii) 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 reasonableperiod of time until the Court rules on the request.

(b) Notice and Right to Respond.

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(i) The person seeking to prohibit access has the burden of providing notice to the parties and such otherpersons as the Court may direct.

(ii) The person seeking to prohibit access must provide proof of notice to the Court or the reason whynotice could not or should not be given consistent with the requirements found in Trial Rule 65(B).

(iii) A party or person to whom notice is given shall have twenty (20) days from receiving notice to respondto the request.

(c) Public Hearing.(i) A Court may deny a request to prohibit Public Access without a hearing.(ii) 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 I.C. § 5-14-2-5.(iii) Following public notice, the Court must 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:(i) States the reasons for granting the request;(ii) Finds the requestor has demonstrated by clear and convincing evidence that any one or more of the

requirements of 9(G)(4)(a) have been satisfied;(iii) Balances the Public Access interests served by this rule and the grounds demonstrated by the

requestor; and(iv) Uses the least restrictive means and duration when prohibiting access.

(5) Procedures for Excluding Court Records From Public Access.(a) Notice to maintain exclusion from Public Access.

(i) In cases where only a portion of the Court Record is excluded from Public Access, the party or personsubmitting the confidential record must provide the following notice that the record is to remainexcluded from Public Access:

a. Pleadings or Papers. A Court Record filed with the Clerk of Court that is to be excluded fromPublic Access must be accompanied by separate written notice identifying the specific 9(G)(2) or9(G)(3) ground(s) upon which exclusion is based. See Form 9-G1.

b. Exhibits. A Court Record tendered or admitted into evidence during an in camera review, hearing,or trial that is to be excluded from Public Access must be accompanied by separate written noticeidentifying the specific 9(G)(2) or 9(G)(3) ground(s) upon which exclusion is based. See Form 9-G2.

c. Oral statements in transcript on appeal. If any oral statement(s) contained in the transcript onappeal is to be excluded from Public Access, then during the hearing or trial, the Court Reportermust be given notice of the exclusion and the specific 9(G)(2) or 9(G)(3) ground(s) upon which thatexclusion is based. If notice was not provided during the hearing or trial, any party or person mayprovide written notice in accordance with Appellate Rules 28(A)(9)(C) or (D). The Court Reportermust comply with Appellate Rules 28(A)(9) and 29(C) when preparing the transcript on appeal.

(ii) In cases where all Court Records are excluded from Public Access in accordance with AdministrativeRule 9(G)(1), no notice of exclusion from Public Access is required.

(b) Green paper requirements. Where only a portion of the Court Record has been excluded from Public Accesspursuant to 9(G)(2) or 9(G)(3), the following requirements apply:

(i) Public Access Version. If a portion of a document filed or exhibit tendered contains confidential CourtRecords to be excluded from Public Access, the document or exhibit must be filed on white paper andany Court Record to be excluded from Public Access shall be omitted or redacted from this version. Theomission or redaction shall be indicated at the place it occurs in the Public

Access version.

(ii) Non-Public Access Version.

a. If the omission or redaction in accordance with 9(G)(5)(b)(i) is not necessary to the disposition ofthe case, the excluded Court Record need not be filed or tendered in any form and only the PublicAccess version is required.

b. If the omission or redaction in accordance with 9(G)(5)(b)(i) is necessary to the disposition of thecase, the excluded Court Record must be separately filed or tendered on green paper andconspicuously marked “Not for Public Access” or “Confidential,” with the caption and number of

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the case clearly designated and:i. If the Court Record is omitted or redacted from an exhibit, attachment, appendix,

transcript, evidentiary designation, or similar document, then the separately filed ortendered Non-Public Access version shall consist only of the omitted or redacted CourtRecord on green paper, with a reference to the location within the Public Access Versionto which the omitted or redacted material pertains.

ii. If the Court Record is omitted or redacted from a motion, memorandum, brief, or similardocument containing substantive legal argument, then the separately filed Non-PublicAccess version shall consist of a complete, consecutively-paginated replication includingboth the Public Access material on white paper and the Non-Public Access material ongreen paper.

(iii) The green paper requirements set forth in 9(G)(5)(b) do not apply to cases in which all Court Recordsare excluded from Public Access pursuant to 9(G)(1).

With respect to documents filed in electronic format, the Court may, by rule, provide for compliance with thisrule in a manner that separates and protects access to Court Records excluded from Public Access.

(6) Waiver, Failure To Exclude, Improper Exclusion, and Sanctions.

(a) Waiver of right to exclude Court Record from Public Access.

(i) The party or person affected by the release of the Court Record may waive the right to exclude theCourt Record from Public Access.

(ii) After waiver, a party or person seeking to reassert the right to exclude the Court Record from PublicAccess may do so only by complying with 9(G)(4).

(b) Failure to exclude Court Record from Public Access.

(i) Unless waived, the right to exclude a Court Record that is expressly declared confidential pursuant to9(G)(1), 9(G)(2), or 9(G)(3) is never forfeited by the failure to comply with any provision of 9(G).

(ii) Immediately upon learning that a Court Record declared confidential pursuant to 9(G)(1), 9(G)(2), or9(G)(3) was not excluded from Public Access, the party submitting such Court Record must comply withthe requirements of 9(G) to ensure proper exclusion.

(c) Improper exclusion of Court Record from Public Access.

(i) Only Court Records declared confidential pursuant to 9(G)(1), 9(G)(2), or 9(G)(3) may be excluded fromPublic Access.

(ii) If a court determines that Court Records are excluded from Public Access without first satisfying9(G)(1), 9(G)(2), or 9(G)(3), the Court Records shall be made available for Public Access seven (7) daysafter notice to the parties and any person affected by the release, unless the requirements of 9(G)(4)are thereafter satisfied.

(d) Sanctions. The failure to comply with any provision of 9(G) can subject counsel or a party to sanctions.

(7) Obtaining Access to Court Records Excluded from Public Access.

(a) A Court Record that is excluded from Public Access under this rule may be made accessible if:

(i) Each person affected by the release of the Court Record waives confidentiality by intentionallyreleasing such Court Record for Public Access pursuant to 9(G)(6)(a); or

(ii) A Court with jurisdiction over the case declares:

a. the Court Record should not have been excluded from Public Access;b. the 9(G)(4) order was improper or is no longer appropriate;c. the Court Record is essential to the resolution of litigation; ord. 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 thefollowing four conditions are met:

(i)Verified written request. The person seeking access to the Court Record must file with the Courthaving jurisdiction over the record a verified written request demonstrating that:

a. Extraordinary circumstances exist requiring deviation from the general provisions of this rule;

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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 anyparty, 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 9(G)(1), 9(G)(2) or 9(G)(3).

When a request is made for access to Court Records excluded from Public Access, the Court Record willremain confidential until the Court rules on the request.(ii) Notice and Right to Respond.

a. The person seeking access has the burden of providing notice to the parties and such otherpersons as the Court may direct.

b. The person seeking access must provide proof of notice to the Court or the reason why noticecould 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 torespond to the request.

(iii) 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 I.C. §5-14-2-5.c. Following public notice, the Court must hold a hearing on the request to allow access to the Court

Record.

(iv) Written Order. Following a hearing, a request to allow access to Court Records may be grantedupon 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(G)(7)(b)(i) have been satisfied; andc. 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.

Commentary

As noted previously, Rule 9 starts from the presumption of open public access to court records. To address those limitedcircumstances 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.

Section G(1) begins by recognizing that, in some instances, an entire case must be excluded from Public Access because allCourt Records have been declared confidential, but Sections G(2) and (3) make clear that in most instances it is only individual

Case or Administrative Records that have been declared confidential. As provided in Ind. R. Evid. 201(b)(5), a court can takejudicial notice of the records of any court of this state, which includes the juvenile records of another court of this state.

This section does not limit the authority of a judge in a particular case to order the sealing of particular records pursuant tothe specific requirements of I.C. §5-14-3-5.5 or to enter an order excluding Court Records from Public Access in accordance withthe specific requirements of G(4). No other type of court order is sufficient to seal or exclude Court Records from Public Access.

Section G(4) addresses those extraordinary circumstances in which information that is otherwise publicly accessiblenonetheless is to be excluded from Public Access. This section generally incorporates a presumption of openness and requirescompelling evidence to overcome this presumption, as well as public notice, a public hearing, and a written order containingspecific findings. While a request made under Section G(4) 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 CourtRecord already may have been disseminated prior to any G(4) request, and action taken under G(4) will not affect those records.

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Section G(5) provides the specific procedures for excluding Court Records from Public Access. The party or personsubmitting the confidential record has the burden of providing separate, written notice identifying the grounds upon which

exclusion is based. See Forms 9-G1 and 9-G2. The act of filing a Court Record on green paper does not constitute the requirednotice.

The 9(G)(5)(a)(i)(c) notice requirements for excluding oral statements contained in a transcript apply only to transcriptsthat are filed with the Clerk by the Court Reporter for use on appeal. The requirements of this provision do not apply to privatetranscripts 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 9(G)(5)(a)(i)(a) or (b) will apply.

In addition to the separate written notice, in most instances, Section G(5)(b) requires filing or tendering of both a PublicAccess version and a Non-Public Access version. The Public Access version is to be on white paper, 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 ofnotation must be made at the precise place in the Public Access version indicating where the omission occurred. The Non-

Public-Access version is to be on green paper and must contain the confidential material redacted or omitted from the PublicAccess version, unless the omitted or redacted confidential material is not necessary to the disposition of the case (such as asocial security number, a bank number, etc.), in which instance the redacted or omitted material need not ever be separately

tendered or filed on green paper and only a Public Access version is required.

Section G(6) permits waiver of confidentiality by the party or person affected by the release of the Court Record, but in allother instances in which a Court Record has been declared confidential pursuant to 9(G)(1), 9(G)(2), or 9(G)(3), such

confidentiality is not forfeited.

If a court determines that a party has improperly excluded Court Records from Public Access without first satisfying G(1),G(2), or G(3), those records shall be made available for Public Access unless, within seven days 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 pursuantto G(4).

Section G(7) is intended to address those extraordinary circumstances in which confidential information or informationwhich 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 thatrecord may be governed by federal or state law. This section is not intended to modify or overrule any federal or state law

governing such records or the process for releasing information.

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VIII. FORMS: Administrative Rule 9(G) & Appellate Rule 28

Form Administrative Rule 9-G1

STATE OF INDIANAIN THE _____________ COURT

COUNTY OF________

_____________________, )Plaintiff(s), )

) Case No: ____________________vs. )

)_____________________, )Defendant(s) )

Administrative Rule 9(G)(5) Notice of Exclusionof Confidential Information from Public Access

(FILED WITH TRIAL COURT CLERK)

Contemporaneous with the filing of this notice, [party name] has filed confidential information on

green paper in accordance with Administrative Rule 9(G)(6). Pursuant to Administrative Rule 9(G)(5),

[party name], provides this notice that the confidential information contained on that green paper is to

remain excluded from public access in accordance with the authority listed below:

Name or description of documentfiled on green paper.

[List here]

Administrative Rule 9(G) grounds upon whichexclusion is authorized.

[List 9(G) grounds here.][NOTE: If 9(G)(a)(2) or (3) provides the basis

for exclusion, you must also list the specific law,statute, or rule declaring the information

confidential.]

Respectfully submitted,

___________________________________[Insert Name]

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CERTIFICATE OF SERVICE

I certify that on this _______ day of _______________, 20_____, the foregoing was served upon

the following by [state method of service]:

[list names and addresses of counsel of record]

_________________________[Signature]

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Form Administrative Rule 9-G2

STATE OF INDIANAIN THE _____________ COURT COUNTY OF________

)_____________________, )Plaintiff(s), )

) Case No: ____________________vs. )

)_____________________, )Defendant(s) )


(TENDERED IN OPEN COURT)

Contemporaneous with the tender of this notice, [party name] has tendered confidential information

on green paper in accordance with Administrative Rule 9(G)(6). Pursuant to Administrative Rule 9(G)(5),

[party name], provides this notice that the confidential information contained on that green paper is to

remain excluded from public access in accordance with the authority listed below:

Name or description of documenttendered on green paper.

[List here]




confidential.]

21

Dated this day of , 20 .


_________________________[Signature]

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Form App. R. 11-4

STATE OF INDIANAIN THE _____________ COURT

COUNTY OF________

)_____________________, )Plaintiff(s), )

) Case No: ____________________vs. )

)_____________________, )Defendant(s) )


(TRANSCRIPT ON APPEAL)

Pursuant to Administrative Rule 9(G)(5)(a)(i)(c) and Appellate Rule 28(A)(9)(b), Administrative

Rule 9(G)(5), [party name], provides this notice that the following confidential information contained in the

transcript on appeal should be filed on green paper and remain excluded from public access in accordance

with the authority listed below:

Transcript page and line number(s).

[List here]




confidential.]

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_________________________[Signature]

CERTIFICATE OF SERVICE

I certify that on this _______ day of _______________, 20_____, the foregoing was served upon

the following by [state method of service]:

[list names and addresses of counsel of record on appeal and court reporter]

_________________________[Signature]

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IX. Access to Public Records Act-Indiana Code §5-14-3-5.5, Sealing of certain records bycourt; hearing; notice

administrative rule 9(g)€¦ · administrative rule 9(g)(5).” b) “appellate rule 23. filing i....

Documents