On Sept. 8, the Indiana Supreme Court issued an order amending the Administrative Rules, wherein it adopted most of the proposed changes and added some requirements to Rule 9(G). These amendments take effect Jan. 1, 2015. As the chair of the DTCI Rules Committee, I was tasked with deciphering the proposed changes, which were substantial. The following is an analysis of the amendments that hopefully will help keep attorneys from being sanctioned under the rule.
The changes to Administrative Rule 9(A) through (F) are clerical. Rule 9(G)(1) addresses court records that must be entirely excluded from public access, and the court has not made any substantive change from the current version of 9(G)(1). However, the proposed version omits various examples of records that are confidential and excluded from public access. It is recommended that the 2014 rule book is kept for future reference.
Rule 9(G)(2) deals with individual case records that must be excluded from public access and also tracks the current version of Rule 9(G)(1). This part does specify some of the information that is confidential and adds email addresses and paternity records. Subsection (b) still refers to records excluded by or deemed confidential by Indiana statute or other court rule. Again, the 2014 rules will serve as a starting point for research.
Court administration records that are excluded from public access are now addressed in a pared down 9(G)(3). In fact, it says simply that records excluded under Rule 9(G)(2) or excluded by or deemed confidential by Indiana statute or other court rule must be excluded.
Rule 9(G)(4) reorganizes Rule 9(H)(1) through (3) and mandates that the petitioner follow the notice requirements set forth in Trial Rule 65 and the posting of notices as set forth in Ind. Code § 5-14-2-5.
Pursuant to Rule 9(G)(5)(a), in cases where only a portion of the court record is excluded from public access, the party submitting the confidential records must provide written notice identifying the specific ground upon which the record is excluded. There are forms that have been prepared by the court depending upon the type of record to be excluded, so these should be added to office forms.
Further, the green paper requirements from Trial Rule 5(G)(1) and (2) are set forth in the new Rule 9(G)(5)(b). If the omission or redaction is not necessary to the disposition of the case, then only the public access version (redacted) has to be filed. Ind. Admin. R. 9(G)(5)(b)(ii)(a). Also, as per Rule 9(G)(5)(b)(ii)(b)(i), if the document that is omitted or redacted is from an exhibit, attachment, appendix, transcript, evidentiary designation or similar document, then only that document has to be submitted with a non-public access version with a reference to the location within the public access version to which the redacted or omitted material pertains. If, however, the court record that is omitted or redacted is from a motion, memorandum, brief or similar document containing substantive legal argument, then the entire document must be filed with a non-public access version. Ind. Admin. R. 9(G)(5)(b)(ii)(b)(ii)
The most important section of the new rule is section 6, which deals with waiver, failure to exclude, improper exclusions and sanctions. See Ind. Admin. R. 9(G)(6). Under subsection (a), a person or party affected by the release of the court records can waive the right to have them excluded and can only re-exclude them by following the provisions in Rule 9(G)(4). If a court record that was declared confidential was not excluded from public access, then subsection (b) mandates that the party that submitted the document immediately comply with the requirements to ensure exclusion. Furthermore, only documents that are declared confidential under 9(G)(1), (2) or (3) can be excluded from public access. If they are excluded before the requirements under 9(G)(1), (2) or (3) are satisfied, the document shall be made available for public access seven days after notice to the parties and any person affected by the release, unless those requirements are satisfied thereafter. Ind. Admin. R. 9(G)(6)(c) (the seven days portion was not contained in the proposed version). Rule 9(G)(6)(d) provides, “The failure to comply with any provision of 9(G) can subject counsel or a party to sanctions.”
Rule 9(G)(7) addresses how to obtain access to court records that have been excluded from public access. It contains part of the current version of 9(G)(3) and 9(I), but adds new requirements. Under (a), a court record that is excluded from public access can be made accessible if those affected by the release of the document waive confidentiality intentionally or if a court with jurisdiction over the case finds that the document should not have been excluded from public access; the order was improper or is inappropriate; the document is essential to the resolution of litigation; or the disclosure is appropriate to further the establishment of precedent or the development of the law. Under (b), a party can request that a court record be made accessible. The requirements here are the same as those contained in the current version of 9(I). Finally, Rule 9(H) through (J) is the same as the current version of Rule 9(J) through (L).
In summary, both attorneys and their clients can be subject to sanctions for failing to ensure that court records that are exempt from public access are properly protected. An attorney should know what is confidential and what is excluded from public access. Attorneys and staff should know how to properly file documents with the court under the new rule in order to keep them that way.•
Ms. Oss serves on the board of directors of the DTCI and is a partner in Huelat Mack & Kreppein. The opinions expressed in this article are those of the author.