Rule 6 - Excluding Other Court Records From Public Access(A) In extraordinary circumstances, a Court Record that otherwise would be publicly accessible may be excluded from Public Access by a Court having jurisdiction over the record. A verified written request to prohibit Public Access to a Court Record may be made by any person affected by the release of the Court Record. The request shall demonstrate that: (1) The public interest will be substantially served by prohibiting access;(2) Access or dissemination of the Court Record will create a significant risk of substantial harm to the requestor, other persons or the general public; or(3) A substantial prejudicial effect to on-going proceedings cannot be avoided without prohibiting Public Access. When this request is made, the request and the Court Record will be rendered confidential for a reasonable period of time until the Court rules on the request.
(B) Notice and Right to Respond. (1) The person seeking to prohibit access has the burden of providing notice to the parties and such other persons as the Court may direct.(2) The person seeking to prohibit access shall provide proof of notice to the Court or the reason why notice could not or should not be given consistent with the requirements found in Trial Rule 65(B).(3) A party or person to whom notice is given shall have twenty (20) days from receiving notice to respond to the request.(C) Public Hearing. (1) A Court may deny a request to prohibit Public Access without a hearing.(2) If the Court does not initially deny the request, it shall post advance public notice of the hearing consistent with the notice requirements found in the Access to Public Records Act.(3) Following public notice, the Court shall hold a hearing on the request to prohibit Public Access to a Court Record.(D) Written Order. Following a hearing, a Court may grant a request to prohibit Public Access by a written order that: (1) States the reasons for granting the request;(2) Finds the requestor has demonstrated by clear and convincing evidence that any one or more of the requirements of Rule 6(A) have been satisfied;(3) Balances the Public Access interests served by this rule and the grounds demonstrated by the requestor; and(4) Uses the least restrictive means and duration when prohibiting access.Adopted November 15, 2019, effective 1/1/2020.Commentary
Rule 6 addresses those extraordinary circumstances in which information that is otherwise publicly accessible nonetheless is to be excluded from Public Access. This section generally incorporates a presumption of openness and requires compelling evidence to overcome this presumption, as well as public notice, a public hearing, and a written order containing specific findings. While a request made under Rule 6 treats the Court Record as confidential from the time of filing or tendering until the court rules on the request, parties should be aware that their request is not retroactive. Copies of the Court Record already may have been disseminated prior to any Rule 6 request, and action taken under Rule 6 will not affect those records.
Every word spoken in court may be transcribed. Thus, trial courts and attorneys are encouraged to discuss confidentiality concerns before presenting evidence. For example, in a case with a child witness who is protected under Rule 5(C)(2), a record could be made that initials or some other identifying information will be used if a transcript is prepared.
When a transcript is prepared in a Rule 5(A) confidential case type, the Court Reporter need not make any redactions or changes because the entire transcript will be confidential.