Administrative Rule 9(G)

Administrative Rule 9(G) (effective January 1, 2015) Maggie L. Smith Member, Frost Brown Todd LLC 1

Table of Contents I. Key definitions... 1 II. Presumption that, except in limited circumstances, all Court Records will be open and available 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, Supreme Court rule, or common law mandates confidentiality... 2 B. Cases/information that parties want excluded, but for which there is no existing statute or rule declaring it to be confidential.... 3 IV. Procedure for excluding information from public access once determination has been made 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 Public Access.... 9 A. Waiver of exclusion... 9 B. Sua sponte judicial determination that Court Record should no longer be excluded 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) when Court 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 by court; hearing; notice...24 2

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 a particular case. A.R. 9(C)(2). a) NOTE: This definition is broad enough to include anything tendered to a Court or 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 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. A.R. 9(C)(3). 4. Public access means the process whereby a person may inspect and copy the information 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 to Public Records Act (I.C. 5-14-3-5.5). II. Presumption that, except in limited circumstances, all Court Records will be open and available 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 Public Access to Court Records and denial of access could compromise the judiciary's role 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 Commentary calls 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 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." A.R. 9(A), Commentary. b) "It is also important to remember that, generally, at least some of the parties in a court case are not in court voluntarily, but rather have been brought into court by plaintiffs or by the government." A.R. 9(A), Commentary. c) "A person who is not a party to the action may also be mentioned in the Court Record. Care should be taken that the privacy rights and interests of such involuntary parties or third persons are not unduly compromised." A.R. 9(A), Commentary. 1

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 in Administrative Rule 9(G). (2) Any Court Record excluded from Public Access pursuant to Administrative Rule 9(G) must be filed in accordance with Administrative Rule 9(G)(5). b) Appellate Rule 23. Filing I. Confidentiality of Court Records on Appeal. (1) Court Records are accessible to the public, except as provided in Administrative Rule 9(G). (2) If a Court Record was excluded from Public Access in the trial court in accordance with Administrative Rule 9(G), the Court Record shall remain excluded from Public Access on appeal unless the court on appeal determines the conditions in Administrative Rule 9(G)(7) are satisfied. (3) Any Court Record excluded from Public Access on appeal must be filed in 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; and 2. 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 Court rule, or common law mandates confidentiality 1. Entire cases that a statute, Supreme Court rule, or common law declares confidential and 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 from public access. (4) Parties need file no notice to exclude anything in the case and need not file anything on green paper. (See Section IV, below.) 2. In an otherwise open case, particular information that statute, Supreme Court rule, or common law declares confidential and therefore must be excluded from public access. (A.R. 9(G)(2) & 9(G)(3).) a) Examples: 2

(1) Many, many federal and state statutes declare information to be confidential. (A.R. 9(G)(2)(a, b).) (a) NOTE: A statutory declaration of confidentiality or exclusion should be specific and often will have an additional judicial inquiry 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 an independent determination that the information meets the separate statutory criteria for being trade secrets. Orbitz, LLC v. Indiana Dep't of State Revenue, 997 N.E.2d 98, 101 (Ind. T.C. 2013). (ii) Ind.Code 31 39 1 1(a) declares juvenile records confidential, but has exceptions. See In re T.B., 895 N.E.2d 321, 340 (Ind. Ct. App. 2008) (iii) I.C. 5 14 3 4(a)(5) states that Confidential financial information is to be excluded, but it does not identify what type of financial information will be deemed confidential and, thus, another source must be found that actually declares a certain type of financial information confidential. (2) Information related to a statutory or common law privilege that has been 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 written orders before excluding information from public access. (3) But, parties do need to provide notice to the Court/Clerk/Court Reporter and tender the information on green paper before it will be excluded. (See Section IV, below.) B. Cases/information that parties want excluded, but for which there is no existing 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; settlement agreements; 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, there is no right to exclude that information from public access; the only permissible way to exclude the information is to comply with every requirement in: a) A.R. 9(G)(4); or 3

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 and therefore avoid it being publically accessible. If a party does tender or file information, however, the only way to keep it excluded in the absence of a statute or rule is to comply with A.R. 9(G)(4) or the Access to Public Records Act 3. Parties cannot agree to exclude information from Public Access; nor is a Trial Rule 26 Protective 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 four steps 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 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. NOTE: The Verified Request (and any tendered information) are automatically provisionally excluded from public access until the court rules on the Request. A.R. 9(G)(4)(a) ( 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. ). (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 the Court may direct. (ii) The person seeking to prohibit access must 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). (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 a hearing. 4

(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. I.C. 5-14-2-5 provides, The court shall notify the parties of the hearing date and shall notify the general public by posting a copy of the hearing notice at a place within the confines of the court accessible to the general public. (iii) Following public notice, the Court must hold a hearing on the request 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 Public Access, 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 the grounds demonstrated by the requestor; and (iv) Uses the least restrictive means and duration when prohibiting access. c) Parties also need to provide notice to the Court/Clerk/Court Reporter and tender the information on green paper before it will be excluded. (See Section IV, 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 of representative government is that government is the servant of the people and not their master. Accordingly, it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information. This chapter shall be liberally construed to implement this policy and place the burden of proof for the nondisclosure of a public record on the public agency that would deny access to the record and not on the person seeking to inspect and copy the record. I.C. 5-14-3-1. (2) Accordingly, Any person may inspect and copy the public records of any 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 is created, received, retained, maintained, or filed by or with a public agency and which is generated on paper, paper substitutes, photographic media, chemically based media, magnetic or machine readable 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, or authority, by whatever name designated, exercising any part of the 5

(c) 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)). Section 4 referenced above refers to a long list of documents and information the legislature has determined either must be excluded from Public Access (5-14-3-4(a)) or can be excluded at the discretion of a public agency (5-14-3-4(b)). This statute is reproduced at the end of these materials. b) Procedure for Sealing of certain records pursuant to I.C. 5-14-3-5.5 (1) Three part test: (a) (b) (c) Public notice (i) Before a court may seal a public record not declared confidential under section 4(a) of this chapter, it must hold a hearing at a date and time established by the court. Notice of the hearing shall be posted at a place designated for posting notices in the courthouse. IC 5-14-3-5.5(c) 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) 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 by effectuating the public policy of the state declared in section 1 of this chapter are outweighed by proof by a preponderance of the evidence by the person seeking the 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 imminent danger to that public interest; (3) any prejudicial effect created by dissemination of the information cannot be avoided by any reasonable method other than sealing the record; (4) there is a substantial probability that sealing the record will be effective in protecting the public interest against the perceived danger; and (5) it is reasonably necessary for the record to remain sealed for a period of time. 5-14-3-5.5(d) (2) Parties also need to provide notice to the Court/Clerk/Court Reporter and 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 the circumstances necessitating the sealing of the records no longer exist. 5-14- 6

3-5.5(d) d) No forfeiture: [T]he plain language of the Public Records Act, specifically sections 3 and 5.5, permits public records to be sealed either before or after they 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 because APRA contains no waiver provision, a public agency cannot waive the exceptions to public disclosure. Unincorporated Operating Div. of Indiana Newspapers, 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 be used 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 interest protected; 5-14-3-5.5 only deals with public interests b) Burden of proof: A.R. 9(G)(4) requires clear and convincing evidence BUT only one factor must be proven; 5-14-3-5.5 requires preponderance of evidence 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 the earliest possible time. IV. Procedure for excluding information from public access once determination has been made 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 from Public 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, or Court Reporter that the Court Record should remain excluded and to provide the Court with 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 the form of a Court Record filed with the Clerk of Court, the record must be accompanied by separate written notice identifying the specific 9(G)(2) or 9(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 tendered or admitted into evidence during an in camera review, hearing, or trial, then the record must be accompanied by separate written notice identifying the specific 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 7

B. Green paper requirements. 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 discussed in the previous two sections will apply. (1) Notice during the hearing or trial. 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 must be given notice of the exclusion and the specific 9(G)(2) or 9(G)(3) ground(s) upon which that exclusion is based. A.R. 9(G)(5)(a)(i)(c). (2) Notice after the hearing or trial. If notice was not provided during the hearing or trial, any party or person may provide written notice in accordance 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 must comply with Appellate Rules 28(A)(9) and 29(C) when preparing the transcript on appeal. A.R. 9(G)(5)(a)(i)(c). 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 there will (generally) be two versions of the Court Record filed: a) Public Access Version. In the Public Access version, everything is filed on white paper with the confidential information redacted (if it is only part of a page) 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 the precise place in the Public Access version indicating where the omission occurred. b) Non-Public Access Version. This separately filed version contains the confidential Court Record on green paper, and this version must be conspicuously marked Not for Public Access or Confidential, with the caption and number of the case clearly designated. A.R. 9(G)(5)(b)(ii)(b) (1) EXCEPTION: If the omission or redaction in accordance with 9(G)(5)(b)(i) is not necessary to the disposition of the case, the excluded Court Record need not be filed or tendered in any form and only the Public Access version is required. A.R. 9(G)(5)(b)(ii)(a) (a) (b) The purpose of this provision is to avoid clogging court files with green paper that has no bearing on the disposition of the case. In these instances, the redacted or omitted material need not ever be separately tendered or filed on green paper and only a Public Access version is required. For example, if the Public Access version is redacted to remove a social security/financial institution number and those numbers are irrelevant to the issues, then the numbers need not be separately provided on green paper. 8

(c) Or, if pages of a corporate document were omitted because they contained trade secrets, and only one paragraph was relevant to the disposition of the case, then only that one paragraph need be separately tendered on green paper. (2) Two different formats for Non-Public Access versions: (a) (b) Exhibits, attachments, appendices, transcripts, evidentiary designations, etc. (i) If the omitted or redacted Court Record is an exhibit, attachment, appendix, transcript, evidentiary designation, etc., The separately filed or tendered Non- Public Access version shall consist only of the omitted or redacted Court Record on green paper, with a reference to the location within the Public Access Version to which the omitted or redacted material pertains. A.R. 9(G)(5)(b)(ii)(b)(i) 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 the Public Access material on white paper and the Non- Public Access material on green paper. (c) The reasoning behind treating these two types of filings differently is that it is relatively easy to jump between the Public Access versus Non-Public Access version when the omitted confidential information is a supporting or evidentiary document. But when the omitted confidential information is part of the document containing the legal argument, then jumping back and forth between two versions is difficult. In this latter case only, there needs to be a single, self-contained version. V. Providing Public Access to Court Records that are currently excluded from Public Access. A. Waiver of exclusion A Court Record that is excluded from Public Access under this rule may be made accessible if [e]ach person affected by the release of the Court Record waives confidentiality by intentionally releasing such Court Record for Public Access pursuant to 9(G)(6)(a). A.R. 9(G)(7)(a)(i). B. Sua sponte judicial determination that Court Record should no longer be excluded 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 9

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 Access under this rule also may be made accessible provided the following four conditions are met: 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 Court having jurisdiction over the record a verified written request demonstrating: 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 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 will remain confidential until the Court rules 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 the parties and such other persons as the Court may direct. (2) The person seeking access must 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) 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 advance public notice of the hearing consistent with the notice requirements found in I.C. 5-14-2-5. I.C. 5-14-2-5 provides, The court shall notify the parties of the hearing date and shall notify the general public by posting a copy of the hearing notice at a place within the confines of the court accessible to the general public. (3) Following public notice, the Court must hold a hearing on the request to 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 be granted upon the issuance of a written order that: 10

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; and c. Considers the Public Access and the privacy interests served by this rule and the grounds demonstrated by the requestor. D. Restrictions on scope of Public Access granted under 9(G)(7) when Court Record would otherwise be excluded. 1. In those extraordinary circumstances where a court allows Public Access to Court Records that would otherwise be excluded, the court may place restrictions on the use or 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 to exclude 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 can waive the right; the conduct of a party who is not affected by the release does not operate as a waiver. 2. Once waiver has occurred, the party or person cannot have a change of mind and automatically reassert the right to exclude the formerly-confidential information from Public Access. Instead, reassertion of the right to exclude can be done only by complying 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 court has declared a Court Record to be confidential and the party or person affected by the release of the Court Record has not waived that confidentiality, then a party s failure to properly 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 confidential pursuant to 9(G)(1), 9(G)(2) or 9(G)(3) was not excluded from Public Access, the party submitting such Court Record must comply with the requirements of 9(G) to ensure proper exclusion. A.R. 9(G)(6)(b)(ii). a) Of course, if copies of the Court Record have already been disseminated to the public prior to realizing the Court Record should have been confidential, there is 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 paper without first satisfying G(1), G(2), or G(3), the court must provide notice of this determination to all parties. 2. The improperly excluded records shall then be made available for Public Access seven days after such notice was sent UNLESS, within that seven day period, the party or person affected by the release of the records begins the process of properly excluding the information pursuant to 9(G)(4). a) The filing of the 9(G)(4) Verified Request to begin the process will allow the 11

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 will automatically become available for Public Access. c) If the court grants the 9(G)(4) request, the Court Records will remain excluded from 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 to sanctions. A.R. 9(G)(6)(d). 12

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 Public Access: (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 are victims 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, unless the person or persons about whom the information pertains waives confidentiality; (h) Complete account numbers of specific assets, loans, bank accounts, credit cards, and personal identification numbers (PINs); (i) All personal notes, e-mail, and deliberative material of judges, jurors, court staff, and judicial agencies, and information 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, prior to return of duly executed service. (k) 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. (3) Court Administration Records That Must Be Excluded From Public Access. The following Court Administration Records 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 reasonable period of time until the Court rules on the request. (b) Notice and Right to Respond. 13

(i) The person seeking to prohibit access has the burden of providing notice to the parties and such other persons as the Court may direct. (ii) The person seeking to prohibit access must 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). (iii) 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. (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 person submitting the confidential record must provide the following notice that the record is to remain excluded from Public Access: a. Pleadings or Papers. A Court Record filed with the Clerk of Court that is to be excluded from Public Access must be accompanied by separate written notice identifying the specific 9(G)(2) or 9(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 notice identifying 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 on appeal is to be excluded from Public Access, then during the hearing or trial, the Court Reporter must be given notice of the exclusion and the specific 9(G)(2) or 9(G)(3) 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(A)(9)(C) or (D). The Court Reporter must 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 Administrative Rule 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 Access pursuant to 9(G)(2) or 9(G)(3), the following requirements apply: (i) (ii) Public Access Version. If a portion of a document filed or exhibit tendered contains confidential Court Records to be excluded from Public Access, the document or exhibit must be filed on white paper and any Court Record to be excluded from Public Access shall be omitted or redacted from this version. The omission or redaction shall be indicated at the place it occurs in the Public Access version. Non-Public Access Version. a. If the omission or redaction in accordance with 9(G)(5)(b)(i) is not necessary to the disposition of the case, the excluded Court Record need not be filed or tendered in any form and only the Public Access version is required. b. If the omission or redaction in accordance with 9(G)(5)(b)(i) is necessary to the disposition of the case, the excluded Court Record must be separately filed or tendered on green paper and conspicuously marked Not for Public Access or Confidential, with the caption and number of 14

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 or tendered Non-Public Access version shall consist only of the omitted or redacted Court Record on green paper, with a reference to the location within the Public Access Version to which the omitted or redacted material pertains. ii. If the Court Record is omitted or redacted from a motion, memorandum, brief, or similar document containing substantive legal argument, then the separately filed Non-Public Access version shall consist of a complete, consecutively-paginated replication including both the Public Access material on white paper and the Non-Public Access material on green paper. (iii) The green paper requirements set forth in 9(G)(5)(b) do not apply to cases in which all Court Records are 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 this rule 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) (b) (c) (d) Waiver of right to exclude Court Record from Public Access. (i) (ii) The party or person affected by the release of the Court Record may waive the right to exclude the Court Record from Public Access. After waiver, a party or person seeking to reassert the right to exclude the Court Record from Public Access may do so only by complying with 9(G)(4). Failure to exclude Court Record from Public Access. (i) (ii) Unless waived, the right to exclude a Court Record that is expressly declared confidential pursuant to 9(G)(1), 9(G)(2), or 9(G)(3) is never forfeited by the failure to comply with any provision of 9(G). Immediately upon learning that a Court Record declared confidential pursuant to 9(G)(1), 9(G)(2), or 9(G)(3) was not excluded from Public Access, the party submitting such Court Record must comply with the requirements of 9(G) to ensure proper exclusion. Improper exclusion of Court Record from Public Access. (i) (ii) Only Court Records declared confidential pursuant to 9(G)(1), 9(G)(2), or 9(G)(3) may be excluded from Public Access. If a court determines that Court Records are excluded from Public Access without first satisfying 9(G)(1), 9(G)(2), or 9(G)(3), the Court Records shall be made available for Public Access seven (7) days after notice to the parties and any person affected by the release, unless the requirements of 9(G)(4) are thereafter satisfied. 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) (b) A Court Record that is excluded from Public Access under this rule may be made accessible if: (i) (ii) Each person affected by the release of the Court Record waives confidentiality by intentionally releasing such Court Record for Public Access pursuant to 9(G)(6)(a); or 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 the development of the law. A Court Record that is excluded from Public Access under this rule also may be made accessible provided the following four conditions are met: (i)verified written request. The person seeking access to the Court Record must 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; 15

(c) 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 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 will remain 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 other persons as the Court may direct. b. The person seeking access must 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. (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 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(G)(7)(b)(i) have been satisfied; and c. Considers the Public Access and the privacy interests served by this rule and the grounds demonstrated by the requestor. 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 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. Section G(1) begins by recognizing that, in some instances, an entire case must be excluded from Public Access because all Court 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 take judicial 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 to the specific requirements of I.C. 5-14-3-5.5 or to enter an order excluding Court Records from Public Access in accordance with the 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 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 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 Court Record already may have been disseminated prior to any G(4) request, and action taken under G(4) will not affect those records. 16

Section G(5) provides the specific procedures for excluding Court Records from Public Access. The party or person submitting 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 required notice. The 9(G)(5)(a)(i)(c) notice requirements for excluding oral statements contained in a transcript apply only to transcripts that are 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 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 Public Access 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 of notation 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 Public Access version, unless the omitted or redacted confidential material is not necessary to the disposition of the case (such as a social 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 all other 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 pursuant to G(4). Section G(7) 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 section is not intended to modify or overrule any federal or state law governing such records or the process for releasing information. 17

VIII. FORMS: Administrative Rule 9(G) & Appellate Rule 28 Form Administrative Rule 9-G1 STATE OF INDIANA IN THE COURT COUNTY OF, ) Plaintiff(s), ) ) Case No: vs. ) ), ) Defendant(s) ) Administrative Rule 9(G)(5) Notice of Exclusion of 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 document filed on green paper. Administrative Rule 9(G) grounds upon which exclusion is authorized. [List here] [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] 18

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] 19

Form Administrative Rule 9-G2 STATE OF INDIANA IN THE COURT COUNTY OF ), ) Plaintiff(s), ) ) Case No: vs. ) ), ) Defendant(s) ) Administrative Rule 9(G)(5) Notice of Exclusion of Confidential Information from Public Access (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 document tendered on green paper. Administrative Rule 9(G) grounds upon which exclusion is authorized. [List here] [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.] 20

Dated this day of, 20. Respectfully submitted, [Signature] 21

Form App. R. 11-4 STATE OF INDIANA IN THE COURT COUNTY OF ), ) Plaintiff(s), ) ) Case No: vs. ) ), ) Defendant(s) ) Administrative Rule 9(G)(5) Notice of Exclusion of Confidential Information from Public Access (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). Administrative Rule 9(G) grounds upon which exclusion is authorized. [List here] [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.] 22

Respectfully submitted, [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] 23

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