Rule 9 - 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: (1) Each person affected by the release of the Court Record waives confidentiality by intentionally releasing such Court Record for Public Access pursuant to 8(A); or(2) A Court with jurisdiction over the case declares:(a) the Court Record should not have been excluded from Public Access;(b) the Rule 6 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.(B) A Court Record that is excluded from Public Access under this rule also may be made accessible provided the following four conditions are met: (1) Verified written request. The person seeking access to the Court Record shall 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;(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 5(A), (B), (C), (D), or (E). 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.
(2) 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 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).(c) A party or person to whom notice is given shall have twenty (20) days from receiving notice to respond to the request.(3) 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 the Access to Public Records Act.(c) Following public notice, the Court shall hold a hearing on the request to allow access to the Court Record.(4) 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(B)(1) have been satisfied; and(c) 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.Adopted November 15, 2019, effective 1/1/2020.Commentary
Rule 9 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 Rule is not intended to modify or overrule any federal or state law governing such records or the process for releasing information.
Every person filing documents with the courts has the primary responsibility to exclude all confidential information that they are filing with the court, whether it belongs to the parties, their children, and witnesses. Attorneys and litigants should be aware that judicial officers, clerks, and court staff are not required to and cannot examine every document filed and determine compliance with Rule 5.