Ind. R. Acce. Ct. Rec. 5
If the information is necessary to the disposition of the case, the document containing the confidential information shall be filed on green paper (if paper filing) or filed as a confidential document (if e-filed). A separate document with the confidential information redacted shall be filed on white paper (if paper filing) or filed as a public document (if e-filing). A separate ACR Form identifying the information excluded from public access and the Rule 5 grounds for exclusion shall also be filed.
Ind. R. Acce. Ct. Rec. 5
Commentary
As noted previously, these Rules start from the presumption of open Public Access to Court Records. To address those limited circumstances where federal statute, state statute, or court rule has declared Court Records to be confidential, this section provides the mechanism by which these confidential Court Records are to be excluded from Public Access.
A court cannot exclude records otherwise accessible to the public because the parties agree to do so or because the parties have entered into a Trial Rule 26(C) protective order. A court has only two ways to exclude otherwise accessible records from Public Access: sealing the records pursuant to Indiana Access to Public Records Act; or entering an Order Excluding Court Records from Public Access pursuant to the specific requirements in Rule 6.
Rule 5(A) begins by recognizing that, in some instances, an entire case shall be excluded from Public Access because all Court Records have been declared confidential, but Rules 5(B), (C), (D) and (E) make clear that in most instances it is only individual Case or Administrative Records that have been declared confidential. A court may take judicial notice of records that are excluded from Public Access, including records in cases where all Court Records have been declared confidential, such as juvenile cases. Ind. Evid. Rule 201(b)(5).
Rule 5(A)(7) is available only to the Clerk of Court to exclude from public access an entire case erroneously opened with a wrong case type immediately upon discovering the mistake. The Clerk shall then consult with a judge for final approval and shall make an appropriate entry. Parties cannot use Rule 5(A)(7) to bypass the specific requirements in Rule 6 for excluding an entire case or excluding Court Records from public access.
Rule 5(B) provides the specific procedures for excluding Court Records from Public Access when the entire Court Record is filed, "locked", and excluded from Public Access. The party or person submitting the confidential record is required to provide separate, written notice identifying the grounds upon which exclusion is based. See ACR Form. Simply filing the document and "locking" it does not satisfy the notice requirement. A person looking at the case will see that a document is excluded in its entirety from the Court Record, and the person must also see ACR Form stating what document was excluded and why.
Filers will use one Form ("Form ACR ")for all purposes. The Form ACR is found in the Appendix to the Indiana Rules on Access to Court Records.
The reference to "court rules" in Rule 5(B)(2) does not refer to local court rules. Counties cannot impose local rules that conflict with the Indiana Rules on Access to Court Records.
Rule 5(C)(1) allows a party or person to redact Social Security Numbers, account numbers, Personal Identification Numbers, and passwords without filing a separate, written notice of exclusion, as long as the court does not need the information to dispose of the case.
When Rule 5 (C)(1) requires both a Public Access Version and a Non-Public Access Version, the party must file a Public Access Version and Non-Public Access Version. The Public Access Version is filed with the confidential information redacted (if it is only part of a page) or omitted (if it is a whole page). If a whole page is omitted, some type of notation shall be made at the precise place in the Public Access version indicating where the omission occurred. The Non-Public Access version is to be "locked" and shall contain the confidential material redacted or omitted from the Public Access version. The party or person submitting the confidential record is required to provide separate, written notice identifying the grounds upon which the exclusion is based. See ACR Form.
Non-Public Access documents containing Court Records that are excluded from Public Access must be identified with a header, label, or stamp that states, "CONFIDENTIAL PER ACCESS TO COURT RECORDS RULE 5" or "EXCLUDED FROM PUBLIC ACCESS PER ACCESS TO COURT RECORDS R ULE 5. " As an example, when a subpoena is returned after service, the return will contain the victim's full name and address. This heading notifies individuals who are processing the document to "lock" the document and maintain its exclusion from Public Access.
Rule 5(C)(2) allows a party or person to replace the name of child witnesses in cases involving sex offenses with initials or other identifiers without filing a written Notice of Exclusion. In some cases, using initials will identify the child victim, and so the Rule gives flexibility to craft a method to protect the child's identity.
In Rule 5(C)(3) the term "juvenile" refers to juvenile delinquency, status, and miscellaneous case types. This subsection does not affect CHINS or TPR case types because those cases are confidential in their entirety under Rule 5(A)(1). Juvenile paternity cases created between July 1, 1941 and July 1, 2014 are confidential under Rule 5(A)(6).
Rule 5(B)(8) excludes all medical records from Public Access in their entirety, in every proceeding, unless the person consents to having the records accessible to the public. This exclusion includes reports from examinations done pursuant to Trial Rule 35. If the public has an interest in seeing the records, Rule 9 allows someone to petition the court for access to the records.
Rule 5(B)(9) excludes from Public Access mental health records compiled for treatment purposes. Reports for competency to stand trial, or for purposes of the insanity defense, remain accessible to the public.
Reports related to the defendant's treatment while undergoing the process of restoration to competency are treatment records and are excluded from Public Access. If the defendant does not regain competency, regular commitment proceedings are initiated under a mental health case, which is excluded from Public Access in its entirety.
Rule 5(B)(10) excludes from Public Access all records related to drug or substance abuse treatment, pursuant to federal law. This exclusion includes drug test results of a probationer when performed at the direction of a substance abuse treatment provider as a condition of probation and drug test results of a problem-solving court participant and a court alcohol and drug program client when administered by a problem-solving court or court established alcohol and drug services program. Drug test results from a test performed as part of supervision, by a probationer or community correction, are not excluded from Public Access.
In Rule 5(B)(11) the term "uncovered" means visible, that is, unobscured by clothing, censor bars, or other similar coverings. The images excluded from public access in Rule 5(B)(11) and (12) are limited to actual visual representations. Subparts (11) and (12) do not include a painting, drawing, or other similar representation.
Indiana Probation Standard 1.4 provides that information in probation files is confidential and may only be released in accordance with the Rules on Access to Court Records, state and federal statutes and rules, and policies adopted by the Judicial Conference of Indiana.