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Indiana

Open Courts Compendium

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Margaret Christensen
Jessica O. Laurin
BINGHAM GREENEBAUM DOLL LLP
10 West Market Street
Indianapolis, Indiana 46204
Telephone: (317) 968-5493
Email: mchristensen@bgdlegal.com

Last updated Feb. 27, 2018

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I. Introduction: Access rights in the jurisdiction

The freedom to report current events is at the core of the expression protected by the First Amendment of the United States Constitution, which binds Indiana. As recognized by our founding fathers, “[o]ur liberty depends on the freedom of the press, and that cannot be limited without being lost.” 9 Papers of Thomas Jefferson 239 (J. Boyd ed. 1954). Further, the press is recognized as “the handmaiden of effective judicial administration, especially in the criminal field” and a guard “against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.” Neb. Press Ass’n v. Stuart, 427 U.S. 539, 560 (1976).

Indiana’s Constitution and statutory scheme strongly supports access to the courts, both for its citizens and its free press. The Indiana Constitution mandates that “[a]ll courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.” Both proceedings and records are open, with exceptions. For example, Indiana Code Section 5-14-2-2 provides that “[c]riminal proceedings are presumptively open to attendance by the general public,” and juvenile proceedings are open if they are murder or felony charges. Id. § 31-32-6-3. Additionally, Indiana’s Access to Public Records Act enables broad access to court records. Id. § 5-14-3-et seq.

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A. The roots of access rights

The Indiana Constitution mandates that “[a]ll courts shall be open,” Ind. Const. art. I, § 12, reflecting “the ancient maxim of jurisprudence that every one is entitled to his day in court, and no one shall be condemned unheard.” State ex rel. Bd. of Commr’s v. Jamison, 42 N.E. 350, 351 (Ind. 1895). The Open Courts clause was intended to prohibit the demanding of fees or costs that influence legal proceedings. Square D. Co. v. O’Neal, 72 N.E.2d 654, 657 (Ind. 1947). Further, the provision “guarantees access to the courts to redress injuries to the extent the substantive law recognizes an actionable wrong.” Smith v. Ind. Dep’t of Correction, 883 N.E.2d 802, 807 (Ind. 2008).

The Open Courts clause thus limits the General Assembly. The legislature may not impose unreasonable regulations that limit the access to courts. Id. Such regulations must “be a rational means to achieve a legitimate legislative goal.” VanDam Estate v. Mid-America Sound, 25 N.E.3d 165, 170 (Ind. Ct. App. 2015). The Open Courts clause also requires the courts to “entertain” existing causes of action. Id.

The First Amendment to the United States Constitution, which is binding on the states, State ex re. Post-Tribune Pub. Co. v. Porter Superior Ct., 412 N.E.2d 748, 751 (Ind. 1980), also protects access to the courts:

“What this means in the context of trials is that the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that Amendment was adopted. ‘For the First Amendment does not speak equivocally. . . . It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.’”

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 (1980) (quoting Bridges v. California, 314 U.S. 252, 263 (1941)).

Indiana statutes also provide access to courts. For example, Indiana Code Section 5-14-2-2 provides that “[c]riminal proceedings are presumptively open to attendance by the general public.” Juvenile proceedings are open if they involve murder or felony charges. Id. § 31-32-6-3. Additionally, Indiana Code Section 5-14-3-1 et seq. and Indiana Administrative Rule 9 provides for public access to court records with certain limitations. Indiana’s Access to Public Records Act enables broad access to court records. Id. § 5-14-3-et seq.; see id. § 5-14-3-2(q) (defining “public agency” as “[a]ny board, commission, department, division, bureau, committee, agency, office, instrumentality, or authority, by whatever name designated, exercising any part of the . . . judicial . . . power of the state.” Relatedly, Indiana Administrative Rule 9(D) provides that all court records are publicly accessible except as provided in Rule 9(G).

The right of public access to Indiana courts serves important public policy purposes, implicating free speech under the First Amendment, fundamental fairness, and the integrity of the justice system. See Taylor v. State, 438 N.E. 2d 275, 279 (Ind. 1982) (citations omitted):

“The historical bases of our constitutional guarantees of free speech and press have been repeatedly and extensively explained; the structural role and societal functions of unfettered and informed public debate have been recently and thoroughly detailed. Often it has been recognized that the guarantees reflect and perpetuate the nation’s profound commitment to the proposition that the integrity of public proceedings is preserved by public access thereto; concomitantly, it has been reiterated that the educative aspects of public exposure to the judicial process serve only to enhance public confidence in the system. This Court recognized the significance of these considerations in Brown v. State, (1969) 252 Ind. 161, 172-3, 247 N.E.2d 76, 83:

“‘The right of the news media to fairly and accurately report the news; the right of the defendant to a fair trial before an impartial tribunal free of the influence of generated prejudice and inflamed passion in the community; and the right of the citizens to fully comprehend and analyze the portent and direction of the administration of our court system are elements necessary to the attainment of justice. If any one of the rights fall, the rest also will surely fall, and the term ‘justice’ will become hollow and meaningless in our constitutional system. Upon the judiciary devolves the duty to maintain, as well as human agency can, the fine and essential balance within and between such tripartite rights, for such a harmonious weighting is necessary to the preservation of ‘justice under the law.’ [Emphasis in original.]’”

Complementary considerations were examined by Chief Justice Burger in Richmond Newspapers, Inc. v. Commonwealth of Virginia.

Administrative Rule 9 has similar stated purposes, promoting openness while recognizing the importance of limits to public access: to “(a) Contribute to public safety; (b) Protect individual Due Process rights and privacy interests; (c) Minimize the risk of injury to individuals; (d) Promote accessibility to Court Records; (e) Promote governmental accountability and transparency; (f) Protect proprietary business information; and (g) Make the most effective use of Court and Clerk of Court staff. Ind. Admin. Rule 9(a).

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B. Overcoming a presumption of openness

Indiana Administrative Rule 9 “starts from the presumption of open Public Access to Court Records.” Ind. Admin. Rule 9(a) Commentary. But the rule also “recognizes that there are times when access to information may lead to, or increase the risk of, harm to individuals.” Id. Therefore, although the “[g]eneral access rule” provides that “[a] Court Record is accessible to the public,” Rule 9(G) provides exceptions that limit accessibility to certain types of records. Therefore, to overcome a presumption of openness, first look to Administrative Rule 9(G) to see if the record sought is excluded. Note that you may need to reference other statutes or court rules, as the exceptions under 9(G) often refer to other statutes or court rules. See, e.g., Admin. Rule 9(G)(1)(a) (excluding “entire cases where all Court Records are declared confidential by statute or other court rule”). There are also limited exceptions in which a court record that would otherwise be accessible may be excluded. See Ind. Admin. Rule 9(G)(4).

Similarly, Indiana Code Section 5-14-2-2 provides that “[c]riminal proceedings are presumptively open to attendance by the general public.” If a party files a motion to exclude the general public from a hearing, that party has the burden of proving by clear and convincing evidence that: “(1) dissemination of information about the content of the criminal proceeding and about its record would create a serious and imminent danger to the defendant’s rights; (2) any prejudicial effect created by any such dissemination cannot be avoided by any reasonable alternative means; and (3) there is a substantial probability that the exclusion will be effective in protecting against the perceived harm.” Ind. Code § 5-14-2-6(c). The court may also exclude the general public on its own and bears the same burden. See id.

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C. Procedural prerequisites to closure

To exclude public access to a court record, the procedures in Indiana Administrative Rule 9(G)(5) must be followed. If a record is excluded from public access under subsections 9(G)(1), no notice of exclusion is required. Admin. Rule 9(G)(a)(ii). But if a record is excluded from public access under subsections 9(G)(2) (individual case records that must be excluded), 9(G)(3) (court administration records that must be excluded from public access), or 9(G)(4) (other court records), the party submitting the confidential record must provide notice that the record should be excluded. Admin. Rule 9(G)(5)(a)(i). Note that court records that are otherwise subject to the general access rule have additional procedural requirements, including a verified written request, notice and right to respond, a public hearing, and a written order. Admin. Rule 9(G)(4). Where only a portion of the court record has been excluded from public access under 9(G)(2) or 9(G)(3), there must be a public access version and may be a non-public access version. Admin. Rule 9(G)(5)(b).

To exclude public access to a criminal proceeding, the court must first give “the parties and the general public a meaningful opportunity to be heard.” Ind. Code § 5-14-2-3. The court must set a hearing date sufficiently in advance, id. § 5-14-2-4, and must post a copy of the hearing notice within the court that is accessible to the general public, id. § 5-14-2-5. Indiana Code Section 5-14-2-6 explains the hearing procedures in detail.

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II. Procedure for asserting right of access to proceedings and records

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A. Media standing to challenge closure

Under Indiana Administrative Rule 9, “[a]ll persons have access to Court Records as provided in this rule.” Admin. Rule 9(B). The Commentary specifies that this rule includes the media. Because the media has the same rights as other “persons,” the media presumably has standing to challenge closure of records. See Evansville Courier v. Prosecutor, 499 N.E.2d 286, 287 (Ind. Ct. App. 1986) (newspaper appealing a trial court decision denying access to public documents under the Indiana Access to Public Records Act); see also Ind. Code § 5-14-2-8(b) (stating that the general public has standing to bring an original action before the Supreme Court contesting a ruling on exclusion from criminal proceedings).

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B. Procedure for requesting access in criminal cases

The Access to Public Records Act details the procedure for obtaining access to court cases. The request for records may be made orally or in writing. See Ind. Code § 5-14-3-9(b), (d). But see Ind. Code § 5-14-3-3(a) (agency has discretion to require request to be in writing or in a form provided by the agency). Note that if the request is made orally, the agency may deny the request orally. Ind. Code § 5-14-3-9(c).

The requester may renew the oral request in writing. See Ind. Code § 5-14-3-9(d). If a written request is denied, the denial must be in writing and include a statement of the specific exemption authorizing the withholding of all or part of the public record and the name and the title or position of the person responsible for the denial. Ind. Code § 5-14-3-9(d). The statute does not address later steps, short of an advisory opinion by the public access counselor or litigation.

Any requests, whether oral or written, must identify with reasonable particularity the record being requested. Ind. Code § 5-14-3-3(a)(1); see also Anderson v. Huntington Cty. Bod. Of Commr’s, 983 N.E.2d 613, 617–19 (Ind. Ct. App. 2013) (holding that the county board had no legal obligation to produce the documents as requested when the request was not reasonably particular). “Whether a request identifies with reasonable particularity the record being requested turns, in part, on whether the person making the request provides the agency with information that enables the agency to search for, locate, and retrieve the records.” Anderson, 983 N.E.2d at 34.

Indiana Code Section 5-14-2-2 provides that “[c]riminal proceedings are presumptively open to attendance by the general public.” A court may not order exclusion of the general public from any criminal proceeding “unless it first affords the parties and the general public a meaningful opportunity to be heard on the issue of any proposed exclusion.” Ind. Code § 5-14-2-3. If a party files a motion to exclude the general public from a hearing, that party has the burden of proving by clear and convincing evidence that: “(1) dissemination of information about the content of the criminal proceeding and about its record would create a serious and imminent danger to the defendant’s rights; (2) any prejudicial effect created by any such dissemination cannot be avoided by any reasonable alternative means; and (3) there is a substantial probability that the exclusion will be effective in protecting against the perceived harm.” Ind. Code § 5-14-2-6(c). The court may also exclude the general public and bears the same burden. See id. If the burden of proof has been satisfied, it may grant the motion, but the exclusion must be reasonably limited and temporary. Ind. Code § 5-14-2-6(e).

Whenever a motion to exclude is filed, or if the court proposes to exclude sua sponte, the court must set a hearing date set sufficiently in advance so that the parties or the public may prepare. Ind. Code § 5-14-2-4. However, the hearing date may not be extended so that it imposes an unreasonable delay. Id. The court must notify the parties of the hearing date and notify the general public by posting a copy of the notice “at a place within the confines of the court accessible to the general public.” Ind. Code § 5-14-2-5.

Note that nothing in Indiana Code Chapter 5-14-2 “affect[s] the inherent power of a court to make limited exclusions of witnesses, to relieve overcrowding, to protect the order and decorum of the courtroom, or to exclude those individuals whose presence constitutes a direct threat to the safety of the spectators, parties, or witnesses.” See Williams v. State, 690 N.E.2d 162, 168, 170 (Ind. 1997) (holding that requiring each person who the officer at the door did not know to show identification and sign in did not exclude anyone and that a court must weigh the benefits of protecting courtroom security with the burdens to the defendant, the press, and the public when considering an identification procedure); Kendrick v. State, 661 N.E.2d 1242, 1244 (Ind. Ct. App. 1996) (remanding to the trial court with instructions to enter specific findings supporting its order to close the courtroom when the informant feared for his life).

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C. Procedure for requesting access in civil matters

The Access to Public Records Act details the procedure for obtaining access to court cases. The request for records may be made orally or in writing. See Ind. Code § 5-14-3-9(b), (d). But see Ind. Code § 5-14-3-3(a) (agency has discretion to require request to be in writing or in a form provided by the agency). Note that if the request is made orally, the agency may deny the request orally. Ind. Code § 5-14-3-9(c).

The requester may renew the oral request in writing. See Ind. Code § 5-14-3-9(d). If a written request is denied, the denial must be in writing and include a statement of the specific exemption authorizing the withholding of all or part of the public record and the name and the title or position of the person responsible for the denial. Ind. Code § 5-14-3-9(d). The statute does not address later steps, short of an advisory opinion by the public access counselor or litigation.

Any requests, whether oral or written, must identify with reasonable particularity the record being requested. Ind. Code § 5-14-3-3(a)(1); see also Anderson v. Huntington Cty. Bd. of Commr’s, 983 N.E.2d 613, 617–19 (Ind. Ct. App. 2013) (holding that the county board had no legal obligation to produce the documents as requested when the request was not reasonably particular). “Whether a request identifies with reasonable particularity the record being requested turns, in part, on whether the person making the request provides the agency with information that enables the agency to search for, locate, and retrieve the records.” Anderson, 983 N.E.2d at 34.

Civil trials are presumptively open to the public.  Members of the press and the public may object to attempts to close proceedings pursuant to Administrative Rule 9.  See Ind. Trial R. 72(B) (“All trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom in or outside the county seat.”). The judge may conduct “all other acts or proceedings” in chambers, suggesting that the judge is at liberty to conduct other proceedings in private. Id.

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D. Obtaining review of initial court decisions

An adverse decision is appealed to the Indiana Court of Appeals, see Indiana Appellate Rule 5, although a party can seek to go directly to the Supreme Court under Rule 56 of the Rules of Appellate Procedure in rare cases.

A notice of appeal must be filed with the trial court clerk within 30 days after the entry of a final judgment or within 30 days after the notation of an interlocutory order. Ind. R. App. P. 9(A)(1); 14. The notice of appeal has replaced the praecipe for appeal. App. R. 2(I); 9(A)(4). Failure to file the notice of appeal means that the appellate court does not have jurisdiction, Neu v. Gibson, 968 N.E.2d 262, 269 (Ind. Ct. App. 2012), and will forfeit the right to appeal, App. R. 9(A)(5).

Within 30 days of a party filing of a notice of appeal, the trial court clerk must assemble the Clerk’s Record, which consists of the chronological case summary and all papers, pleadings, documents, orders, judgments and other materials filed in the trial court. App. R. 2(E), 10(B). Within 45 days of the appellant filing the Notice of Appeal, the court reporter must file the Transcript with the trial court clerk. App. R. 11(B). Briefing deadlines are tied to the date the record and transcripts are filed. App. R. 45.

Indiana Code Section 5-14-2-8 specifically addresses challenging an initial trial court ruling excluding or allowing public access to criminal proceedings. The rule provides that any aggrieved party or member of the general public may bring an original action to the Supreme Court. Ind. Code § 5-14-2-8(a). Filing a motion or a proposed court order “constitutes a showing that the duty to act has been presented or brought to the attention of the trial court.” Id. 5-14-2-8(c).

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III. Access to criminal proceedings

Criminal proceedings are presumptively open to attendance by the general public. This presumption does not include the deliberations of juries or omnibus hearings unless witnesses are giving testimony. See Public Access to Criminal Proceedings Act, IC 5-14-2, et seq.

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A. In general

“There is venerable tradition and practice in Indiana courts engaged in the administration of the criminal law which requires proceedings to be open to attendance by the general public, the press and other news media, and friends of the accused. Open judicial proceedings are the norm and are favored.” State ex rel. Post-Tribune Pub. Co. v. Porter Superior Ct., 412 N.E.2d 748, 750 (Ind. 1980). The Indiana Constitution protects the right of the accused to a public trial, Art. 1, § 3, and Indiana Code Section 5-14-2-2 provides that “[c]riminal proceedings are presumptively open to attendance by the general public.”

However, the right to access criminal proceedings is not unlimited. The First Amendment allows “[c]omplete or partial exclusion of the public may be justified if a court finds ‘that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” Williams v. State, 690 N.E.2d 162, 167 (Ind. 1997) (citing Waller v. Georgia, 467 U.S. 39, 45 (1984)). Additionally, Indiana courts have statutory authority to exclude the public from access to criminal proceedings if “it first affords the parties and the general public a meaningful opportunity to be heard on the issue of any proposed exclusion.” Ind. Code § 5-14-2-3.

For a thorough discussion of the constitutional right to a public criminal trial and Indiana statutes regarding open criminal proceedings, see Williams v. State, 690 N.E.2d 162, 167–68 (Ind. 1997) (citations and footnote omitted):

“In addition to the Sixth Amendment, Section 13 of the Indiana Constitution provides that ‘In all prosecutions, the accused shall have the right to a public trial....’ IND. CONST. art. I, § 13.

. . .

The right to a public trial has long been recognized as a fundamental right of the accused. It helps ensure a fair trial because “the presence of interested spectators may keep [the accused’s] triers keenly alive to a sense of their responsibility and to the importance of their functions....” Waller, 467 U.S. at 46, 104 S.Ct. at 2215 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 2906, 61 L.Ed.2d 608 (1979) (in turn quoting Oliver, 333 U.S. at 270 n. 25, 68 S.Ct. at 506 n. 25)). It protects the accused by allowing the public to assess the fairness of the proceedings. In addition, it encourages witnesses to come forward, and discourages perjury. In addition to the rights of the defendant, the public trial implicates the First Amendment right of the press and public to attend a criminal trial, Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), or other proceeding. Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (extending First Amendment right of access to voir dire). However, neither right is absolute. Complete or partial exclusion of the public may be justified if a court finds “that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Waller, 467 U.S. at 45, 104 S.Ct. at 2215 (quoting Press-Enterprise, 464 U.S. at 510, 104 S.Ct. at 824). See also Hackett, 266 Ind. at 110, 360 N.E.2d at 1004 (exclusions may be justified by a legitimate purpose that furthers the integrity of the judicial process, so long as there is a sufficient record supporting the court’s exercise of discretion). Examples of valid exclusions include forbidding the televising of a public trial, Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) and protecting a witness fearful of retaliation by those attending the trial, Hackett, 266 Ind. at 110, 360 N.E.2d at 1004; Kendrick, 661 N.E.2d at 1242.

In addition to his constitutional right, Williams relies on Indiana’s statutory protection of public access to criminal proceedings. The Indiana Code provides that ‘Criminal proceedings are presumptively open to attendance by the general public.’ IND.CODE § 5-14-2-2 (1993), and defines “open to attendance” as meaning ‘that individuals have the right freely to attend and observe criminal proceedings.’ Id. at § 5-14-2-1. The general public may be excluded from a criminal proceeding, however, if the court “first affords the parties and the general public a meaningful opportunity to be heard on the issue of any proposed exclusion.” Id. at § 5-14-2-3. In addition, as Williams notes, the Code further provides:

This chapter does not affect the inherent power of a court to make limited exclusions of witnesses, to relieve overcrowding, to protect the order and decorum of the courtroom, or to exclude those individuals whose presence constitutes a direct threat to the safety of the spectators, parties, or witnesses.

Id. at § 5-14-2-7.”

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B. Pretrial proceedings

Indiana Code Section 5-14-2-2 provides that “[c]riminal proceedings are presumptively open to attendance by the general public.” Nothing in the statute indicates that “[c]riminal proceedings” does not include pretrial proceedings.

The Indiana Constitution provides the accused in a criminal case the right to a public trial, which may include pretrial proceedings. Ind. Const. Art. 1 § 13.  “In addition to the rights of the defendant, the public trial implicates the First Amendment right of the press and public to attend a criminal trial, or other proceeding.” Williams v. State, 690 N.E.2d 162, 167–68 (1997) (citations omitted) (emphasis added). But see State ex. rel. Post-Tribune Publ’g Co. v. Superior Ct., 412 N.E.2d 748, 750 (Ind. 1980) (“A ‘trial’ for [constitutional] purposes is considered to be the actual trial by jury upon the issue of guilt or innocence.”). In Post-Tribune Publishing, the Indiana Supreme Court took “the same stance” as the United States Supreme Court that the public and the press have a First Amendment right to access pre-trial proceedings. Post-Tribune Publ’g, 412 N.E.2d at 410. The Court ultimately concluded that the relators did not sustain their burden in showing that the trial court should not have ordered closure of a bail hearing, but the current statutes governing access to criminal proceedings were not then in place. See id.; Ind. Code § 5-14-2, et seq.

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C. Criminal trials

The Indiana Constitution protects the right of the accused to a public trial, Art. 1, § 3, although this right is not unlimited.  In addition, Indiana Code Section 5-14-2-2 provides that “[c]riminal proceedings are presumptively open to attendance by the general public.” However, Indiana courts have statutory authority to exclude the public from access to criminal proceedings if they “first afford[] the parties and the general public a meaningful opportunity to be heard on the issue of any proposed exclusion.” Ind. Code § 5-14-2-3.

There is also a First Amendment presumption of access to criminal trials that may be overcome “if a court finds ‘that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” Williams v. State, 690 N.E.2d 162, 167 (Ind. 1997) (citing Waller v. Georgia, 467 U.S. 39, 45 (1984)); see also Kendrick v. State, 670 N.E.2d 369, 370 (Ind. App. 1996) (stating the United States Supreme Court’s analysis for determining whether a courtroom may be closed: “[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect the interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, [4] it must make findings adequate to support the closure.”).

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D. Post-trial proceedings

Indiana Code Section 5-14-2-2 provides that “[c]riminal proceedings are presumptively open to attendance by the general public.” Nothing in the statute indicates that “[c]riminal proceedings” does not include post-trial proceedings. See also Ind. Code § 35-38-9-10(i) (stating that expungement hearings are open).

The Indiana Constitution provides the accused in a criminal case the right to a public trial, which may include post-trial proceedings. Ind. Const. Art. 1 § 13. “In addition to the rights of the defendant, the public trial implicates the First Amendment right of the press and public to attend a criminal trial, or other proceeding.” Williams v. State, 690 N.E.2d 162, 167–68 (1997) (citations omitted) (emphasis added). But see State ex. rel. Post-Tribune Pub’g Co. v. Superior Ct., 412 N.E.2d 748, 750 (Ind. 1980) (“A ‘trial’ for [constitutional] purposes is considered to be the actual trial by jury upon the issue of guilt or innocence.”). In Post-Tribune Publishing, the Indiana Supreme Court took “the same stance” as the United States Supreme Court that the public and the press have a First Amendment right to access pre-trial proceedings. Post-Tribune Publ’g, 412 N.E.2d at 410. Indiana courts have not addressed whether there is also a First Amendment right to post-trial proceedings, but it is possible that they would apply the same analysis.

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E. Appellate proceedings

Indiana Code Section 5-14-2-2 provides that “[c]riminal proceedings are presumptively open to attendance by the general public.” Nothing in the statute indicates that “[c]riminal proceedings” does not include appellate proceedings.

Appellate oral arguments are generally webcast live as they occur in the courtroom. Videos of oral arguments may be found here: http://mycourts.in.gov/arguments/.

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IV. Access to criminal court records

Indiana Administrative Rule 9 provides for general access to court records, subject to various restrictions. The full text of Administrative Rule 9 is available on the Indiana courts’ website. http://www.in.gov/judiciary/rules/admin/index.html#_Toc245015560.

The Indiana courts publish a “Public Access to Court Records Handbook,” which is available on the Indiana courts website. https://www.in.gov/pac/files/PAC%20Handbook%202017.pdf.

The Handbook states, in part:

“The Access to Public Records Act (“APRA”) (Ind. Code § 5-14-1.5), originally passed by the Indiana General Assembly in 1983 and most recently amended in 2016, was enacted to permit the citizens of Indiana broad and easy access to public records. By providing the public with the opportunity to review and copy public records, the APRA gives individuals the opportunity to obtain information relating to their government and to more fully participate in the governmental process. (p. 27).”

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A. In general

Unless covered by a specific exemption (or by a properly issued protective order in litigation), all records of courts are covered by the Access to Public Records Act. Ind. Code § 5-14-3-2. The Act, however, provides for mandatory exemption from disclosure for any information that is “declared confidential by or under rules adopted by the supreme court of Indiana.” Ind. Code § 5-14-3-4(a)(8).

In 2004, the Indiana Supreme Court adopted amendments to Administrative Rule 9, which governs access to court records. The stated objective of the rule is to “provide maximum public accessibility to court records, taking into account public policy interests that are not always fully compatible with unrestricted access.” See Commentary to Ind. Admin. R. 9(A). Though many of the rule’s provisions simply reiterate exemptions provided by the Access to Public Records Act, see, e.g., Ind. Admin. R. 9(G)(2), the rule also exempts from disclosure many additional types of information. See Ind. Admin. R. 9(G). This exclusion can occur without a hearing and without a balancing of the competing interests involved. See Bobrow v. Bobrow, 810 N.E.2d 726, 734 (Ind. App. 2004) (“When public records fall within a mandatory exception under [Ind. Code § 5-14-3-]4(a), a trial court can seal those records without holding . . . a hearing and balancing the competing interests.”).

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B. Arrest records

If a person is arrested or summoned for an offense, information that identifies the person, describes any charges on which the arrest or summons is based, and relates to the circumstances of the arrest or the issuance of the summons must be disclosed. Ind. Code § 5-14-3-5(a). If a person is received in a jail or lock-up, information that identifies the person, the reason for being placed in lock-up, including the name of the person on whose order the person is being held, the time and date that the person was received, the time and date of the person’s discharge, and the amount of the person’s bail or bond, if fixed, shall be disclosed. Ind. Code § 5-14-3-5(b).

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C. Dockets

Under Administrative Rule 9(e)(4), courts “should endeavor” to make “[c]alendars or dockets of Court proceedings, including case numbers and captions, date and time of hearings, and location of hearings” and chronological case summaries remotely accessible to the public. Indiana uses the Odyssey case management system, which allows the public to search cases by case numbers, party names, or attorneys: https://public.courts.in.gov/mycase/#/vw/Search.

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If a person is arrested or summoned for an offense, information that identifies the person, describes any charges on which the arrest or summons is based, and relates to the circumstances of the arrest or the issuance of the summons must be disclosed. Ind. Code § 5-14-3-5(a). If a person is received in a jail or lock-up, information that identifies the person, the reason for being placed in lock-up, including the name of the person on whose order the person is being held, the time and date that the person was received, the time and date of the person’s discharge, and the amount of the person’s bail or bond, if fixed, shall be disclosed. Ind. Code § 5-14-3-5(b).

Entire criminal cases are excluded from public access when the request to exclude is filed contemporaneously with a request for an arrest warrant. Ind. Admin. Rule 9(G)(2)(j). Additionally, “[w]hen probable cause to justify issuance of an arrest warrant has been established, the Case Records shall be publicly accessible unless the judge determines that the facts presented in the request for exclusion for Public Access support a reasonable belief that public disclosure will increase the risk of flight by the defendant, create an undue risk of harm to the community or a law enforcement officer, or jeopardize an on-going criminal investigation.” Id. 9(G)(2)(j)(i). An order excluding public access under Administrative Rule 9(G)(2)(j) expires when the defendant is arrested. Id. 9(G)(2)(j)(ii).

Similarly, court records related to violations of post-conviction supervision are excluded from public access when the request to exclude is filed contemporaneously with the notice of violation and the request for an arrest warrant. Ind. Admin. Rule 9(G)(2)(m). Additionally, “[w]hen probable cause to justify issuance of an arrest warrant has been established, the Case Records shall be publicly accessible unless the judge determines that the facts presented in the request for exclusion for Public Access support a reasonable belief that public disclosure will increase the risk of flight by the defendant, create an undue risk of harm to the community or a law enforcement officer, or jeopardize an on-going criminal investigation.” Id. 9(G)(2)(m)(i). An order excluding public access under Administrative Rule 9(G)(2)(m) expires when the defendant is arrested. Id. 9(G)(2)(m)(ii).

If a prosecuting attorney moves to seal the indictment or information, the court is at liberty to do so. Ind. Code § 35-34-1-1(d).

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E. Discovery materials

Although the following discovery materials are not exclusive to criminal proceedings, they often are relevant in criminal cases.

Autopsies. In 2001, a mandatory exception was added to bar disclosure of “a photograph, a video recording, or an audio recording of an autopsy, except as provided in [Ind. Code §] 36-2-14-10.” Ind. Code § 5-14-3-4(a)(11). The same law also amended Indiana Code Section 36-2-14-10 to declare autopsy photographs, video recordings, or audio recordings confidential for the purposes of § 5-14-3-4(a)(1), except in certain instances involving a surviving spouse, a government agent acting in an official capacity, or a coroner using the materials for training or educational purposes. Ind. Code § 36-2-14-10(b)–(e); see also Ind. P.L. 271-2001, §§ 1, 3, 4 (enumerating permitted and prohibited disclosures of autopsy records under Ind. Code §§ 5-14-3-4(a)(1), 16-39-7.1 and 36-2-14-10). The identifying information must also be removed from the disclosed material. Ind. Code § 36-2-14-10(b)–(e). “Identifying information” includes the deceased person’s name, address, Social Security number, a full view of the face, or identifying marks on the body that are unrelated to the medical condition or medical status. Ind. Code § 36-2-14-10(e)(1)-(5).

Notwithstanding these exceptions, and also notwithstanding the investigative records exception Section 5-14-3-4(b)(1), Indiana Code Section 36-2-14-18 requires that coroners must make certain information available, effectively mooting Althaus v. Evansville Courier Co., 615 N.E.2d 441, 446–47 (Ind. App. 1993), and Heltzel v. Thomas, 516 N.E.2d 103, 105–06 (Ind. App. 1987), which both held that the coroner’s office is a law enforcement agency, and the respective coroners did not act arbitrarily or capriciously in refusing to disclose autopsy reports.

Emergency Medical Service Records. There is no specific provision relating to emergency medical services records in the Access to Public Records Act. However, Indiana Code Section 16-31-2-11 governs the accessibility of emergency medical service records. Any pre-hospital ambulance rescue or record that an emergency ambulance service employing paramedics or emergency medical technicians uses or compiles is generally confidential. However, certain information within these record is public: the date and time of the request for ambulance services; the reason for the request for assistance; the time and nature of the response to the request for ambulance services; the time of arrival at the scene where the patient was located; the time of departure from the scene where the patient was located; and the name of the facility, if any, to which the patient was delivered for further treatment and the time of arrival at that facility. Id. § 16-31-2-11(d).

Gun Licenses. Under Indiana Code Section 35-47-2-3(l), information that an applicant submits to obtain or renew a gun license, information that the government obtains to investigate such application, and identifying information of gun license holders are confidential. However, law enforcement personnel seeking to determine the validity of a license to carry a handgun or for law enforcement purposes may obtain such information. Id. § 35-47-2-3(m). Further, persons conducting journalistic or academic work may obtain such information, but only if all personal identifying information is redacted.

In 2016, the General Assembly added statutory provisions governing law enforcement recordings, defined as “an audio, visual, or audiovisual recording of a law enforcement activity captured by a camera or other device that is: (1) provided to or used by a law enforcement officer in the scope of the officer’s duties; and (2) designed to be worn by a law enforcement officer or attached to the vehicle or transportation of a law enforcement officer.” Ind. Code § 5-14-3-2(k). Indiana Code 5-14-3-5.2(a) provides that a public agency may allow anyone to inspect and copy law enforcement recordings, unless one of the delineated exceptions applies. Additionally, the General Assembly enacted provisions requiring public agencies to retain unaltered or unobscured law enforcement recordings. See Ind. Code § 5-14-3-5.3.

Accident Reports. Accident reports are not specifically addressed under the Access to Public Records Act, but they are addressed under other statutory sections. Vehicle accident reports filed by a law enforcement officer are not confidential. Ind. Code § 9-26-2-3; Whitaker v. Apriss, 266 F.Supp.3d 1103 (N.D. Ind. 2017) (vehicle accident reports are not “motor vehicle records” and not subject to the protections of the Driver’s Privacy Protection Act, 18 U.S.C. §2721, et. seq.). However, other accident reports may only be used for state agencies, with exceptions. Id. § 9-26-2-4; see Madison v. Hawkins, 644 N.E.2d 184, 187 (Ind. Ct. App. 1994) (holding that the statute protected the accident report from discovery).

Police Blotter. The Access to Public Records Act requires police agencies to maintain a daily log or record that lists suspected crimes, accidents, or complaints. Ind. Code § 5-14-3-5(c). The record containing the information must be created not later than twenty-four hours after the suspected crime, accident, or complaint has been reported to the agency. Id.

911 Tapes. There is no statutory and little case law addressing 911 tapes. See City of Elkhart v. Agenda: Open Gov’t, Inc., 683 N.E.2d 622, 626 (Ind. Ct. App. 1997) (“The City begins with the premise, and we do not disagree, that the E–911 system is a record keeping or security system.”). A 2017 Public Access Counselor opinion addressed the question of whether 911 recordings are investigatory records under Indiana Code Section 5-14-3-4(b)(1). Opinion of the Public Access Counselor, Hasnie v. Carroll Cty. E-911, 17-FC-167. The Counselor opined that Carroll E-911 was not a “law enforcement agency” under the Access to Public Records Act, but even if it were, the investigatory records exception would not apply because the information sought was not “compiled in the investigation of a crime.” Id. The Counselor cited prior opinions that many 911 calls do not involve crime investigation and that 911 tapes are presumed to be records subject to public disclosure. Id (citing Opinion of the Public Access Counselor 08-FC-64).

Investigatory Records. Under Indiana Code Section 5-14-3-4(b)(1), access to investigatory records of law enforcement agencies may be provided or denied at the agency’s discretion. The statute does not distinguish between active or closed investigations.

However, under Indiana Code Section 5-14-3-5(b)(1), certain law enforcement information must be made available. See Althaus v. Evansville Courier Co., 615 N.E.2d 441, 446 (Ind. Ct. App. 1993) (holding that the investigatory records exception applied to the coroner’s files). This includes information about an individual who is arrested or jailed and also police logs of crimes, accidents and complaints. Ind. Code § 5-14-3-5(b)(1); see Post-Tribune v. Police Dep’t, 643 N.E.2d 307, 308–09 (Ind. 1994) (holding that police department satisfied obligation to provide “location” of rape by providing most specific location that reasonably protected victim’s privacy, not requiring department to provide exact address). Criminal intelligence information is confidential under Indiana Code Section 5-2-4-6 and is an exception to the general disclosure rule under Section 5-14-3-4(b)(25).

Criminal Histories. Access to criminal histories is governed by Indiana Code Section 10-13-3-27. Access is permitted only in sixteen instances, including if the individual has applied for employment with the requestor; is a candidate for public office or is a public official; has been or is in the process of being arrested; or has been convicted of major felonies; is a volunteer at a public school or at an organization where contact with children is expected; is being sought by a parent locator service; is a registered sex or violent offender. Id. Additionally, “[a] person may petition the state police department to limit access to the person’s limited criminal history to criminal justice agencies if more than fifteen (15) years have elapsed since the date the person was discharged from probation, imprisonment, or parole (whichever is later) for the last conviction for a crime,” Ind. Code § 35-38-5-5(b), but this provision does not apply to a request to a law enforcement agency in certain circumstances, Ind. Code § 35-38-5-5(a). If a petition is filed under Indiana Code Section 35-38-5-5(b), “the state police department shall not release limited criminal history to noncriminal justice agencies under IC 10-13-3-27.” Ind. Code § 35-38-5-5(c).

Information About Victims. Ind. Code Section 5-14-3-5(c)(3)(B) requires law enforcement agencies to provide the name and age of victims of crimes or infractions, unless the person is a victim of the sex crimes enumerated in Indiana Code Section 35-42-4-1 et seq., including rape, “criminal deviate conduct,” child molesting, child seduction, child solicitation, and sexual battery, or a victim of human and sexual trafficking under Section 35-42-3.5 et seq..

Confessions. Under Indiana Code § 5-14-3-4(b)(1), access to investigatory records of law enforcement agencies may be provided or denied at the agency’s discretion. If the confession is admitted as evidence at a court hearing or trial, the public is entitled to access it under the First Amendment and common law rights of access to judicial records, see State ex re. Post-Tribune Pub. Co. v. Porter Superior Ct., 412 N.E.2d 748, 751 (Ind. 1980), and under Indiana Administrative Rule 9.

Confidential Informants. Indiana Code Section 4-2-7-8 provides that the identity of any individual who discloses in good faith to the inspector general information alleging a violation of a state or federal statute, rule, regulation, or ordinance is confidential and may not be disclosed to anyone other than the governor, the staff of the office of the inspector general, or an authority to whom the investigation is subsequently referred or certified, unless: (1) the inspector general determines in writing disclosure is in the public interest, or (2) the individual consents to disclosure. Otherwise, confidential informants would be encompassed by Indiana Code Section 5-14-3-4(b)(1), which gives law enforcement agencies discretion to provide or deny access to investigatory records.

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F. Pretrial motions and records

Pretrial motions and records are open to public access unless Administrative Rule 9(G) excludes them. Ind. Admin. Rule 9(D)(1).

Indiana Administrative Rule 9(G)(2)(l) excludes “[c]ase [r]ecords created or maintained by an agency or program for pre-trial release and supervision and problem-solving court supervision.”

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G. Trial records

Trial records are open to public access unless Administrative Rule 9(G) excludes them. Ind. Admin. Rule 9(D)(1).

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H. Post-trial records

Post-trial records are open to public access unless Administrative Rule 9(G) excludes them. Ind. Admin. Rule 9(D)(1).

Presentence reports or memoranda submitted to the court for sentencing are generally confidential. Ind. Code § 35-38-1-13(a). However, persons or entities connected with the case may have access. Ind. Code § 35-38-1-13(b).

Expungement records are governed by Indiana Code sections 35-38-9-1-et seq. All documents in expungement cases become confidential when the court grants the petition to expunge. Ind. Code § 35-38-9-10(i). However, until the court grants the petition, documents filed in the case are not confidential. Id.  Even after an expungement order is granted, however, public records relating to the arrest, conviction, or sentence remain public, although the records must be “clearly and visibly marked or identified as being expunged.” Ind. Code § 35-38-9-7(b).

There are special provisions relating to a person who has been arrested, charged, or alleged to be a delinquent child if the allegation either did not result in a conviction or juvenile adjudication or the adjudication was vacated, and the person is not participating in a pretrial diversion program. Ind. Code § 35-38-9-1(a). If an order granting expungement is granted in these circumstances, the information and records regarding the allegations are sealed or redacted. Ind. Code § 35-38-9-9(f).

Court records related to violations of post-conviction supervision are excluded from public access when the request to exclude is filed contemporaneously with the notice of violation and the request for an arrest warrant. Ind. Admin. Rule 9(G)(2)(m). Additionally, “[w]hen probable cause to justify issuance of an arrest warrant has been established, the Case Records shall be publicly accessible unless the judge determines that the facts presented in the request for exclusion for Public Access support a reasonable belief that public disclosure will increase the risk of flight by the defendant, create an undue risk of harm to the community or a law enforcement officer, or jeopardize an on-going criminal investigation.” Id. 9(G)(2)(m)(i). An order excluding public access under Administrative Rule 9(G)(2)(m) expires when the defendant is arrested.

The Indiana Department of Correction maintains a searchable offender registry at http://www.in.gov/apps/indcorrection/ofs/ofs. Prison, parole, and probation reports fall under the open access rule. See Smith v. State, 873 N.E.2d 197, 200–01 (Ind. Ct. App. 2007) (citing Indiana Code Section 5-14-3-3 as governing an inmate’s right to receive a copy of prison records showing budget allocation towards prisoner meals, subject to a statutory fee).

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I. Appellate records

Appellate records are open to public access unless Administrative Rule 9(G) excludes them. Ind. Admin. Rule 9(D)(1). Indiana uses the Odyssey case management system, which allows the public to search cases by case numbers, party names, or attorneys: https://public.courts.in.gov/mycase/#/vw/Search.

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J. Other criminal court records issues

Indiana Code Section 11-8-8-7 requires sex offenders to register with the state. The Indiana Sheriffs’ Association maintains the searchable Indiana Sex and Violent Offender Registry at http://www.icrimewatch.net/indiana.php.

Indiana Administrative Rule 9(G)(2)(g) mandates that information identifying witnesses or victims in criminal, domestic violence, stalking, sexual assault, and juvenile proceedings shall be excluded from public record. However, names, addresses, phone numbers, and dates of birth are not excluded, except that juveniles who are the victims of sex crimes shall only be identifiable by initials.

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V. Access to civil proceedings

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A. In general

Although Indiana Code Section 5-14-2-2 provides that “[c]riminal proceedings are presumptively open to attendance by the general public,” there is no comparable provision for civil proceedings. However, Indiana Trial Rule 72(B) provides that “[a]ll trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom in or outside the county seat.” According to the Rule, the judge may conduct “all other acts or proceedings” in chambers. Id.

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B. Pre-trial proceedings

Indiana Trial Rule 72(B) provides that, besides trials on the merits, judges may conduct “all other acts or proceedings” in chambers.

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C. Trials

Indiana Trial Rule 72(B) provides that “[a]ll trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom in or outside the county seat.”

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D. Post-trial proceedings

Indiana Trial Rule 72(B) provides that, besides trials on the merits, judges may conduct “all other acts or proceedings” in chambers.

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E. Appellate proceedings

Most appellate oral arguments are webcast live as they occur in the courtroom. Videos of oral arguments may be found here: http://mycourts.in.gov/arguments/.

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VI. Access to civil records

Indiana Administrative Rule 9 provides for general access to court records, subject to various restrictions. The full text of Administrative Rule 9 is available on the Indiana courts’ website. http://www.in.gov/judiciary/rules/admin/index.html#_Toc245015560.

The Indiana courts publish a “Public Access to Court Records Handbook,” which is available on the Indiana courts website. https://www.in.gov/pac/files/PAC%20Handbook%202017.pdf.

The Handbook states, in part:

"The Access to Public Records Act (“APRA”) (Ind. Code § 5-14-1.5), originally passed by the Indiana General Assembly in 1983 and most recently amended in 2016, was enacted to permit the citizens of Indiana broad and easy access to public records. By providing the public with the opportunity to review and copy public records, the APRA gives individuals the opportunity to obtain information relating to their government and to more fully participate in the governmental process." (p. 27.)

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A. In general

Unless covered by a specific exemption (or by a properly issued protective order in litigation), all court records are covered by the Access to Public Records Act. Ind. Code § 5-14-3-2. The Act, however, provides for mandatory exemption from disclosure of any information that is “declared confidential by or under rules adopted by the supreme court of Indiana.” Ind. Code § 5-14-3-4(a)(8).

In 2004, the Indiana Supreme Court adopted amendments to Administrative Rule 9, which governs access to court records. The stated objective of the rule is to “provide maximum public accessibility to court records, taking into account public policy interests that are not always fully compatible with unrestricted access.” See Commentary to Ind. Admin. R. 9(A). Though many of the rule’s provisions simply reiterate exemptions provided by the Access to Public Records Act, see, e.g., Ind. Admin. R. 9(G)(2), the rule also exempts from disclosure many additional types of information. See Ind. Admin. R. 9(G). This exclusion can occur without a hearing and without a balancing of the competing interests involved. See Bobrow v. Bobrow, 810 N.E.2d 726, 734 (Ind. App. 2004) (“When public records fall within a mandatory exception under [Ind. Code § 5-14-3-]4(a), a trial court can seal those records without holding . . . a hearing and balancing the competing interests.”).

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B. Dockets

Under Administrative Rule 9(e)(4), courts “should endeavor” to make “[c]alendars or dockets of Court proceedings, including case numbers and captions, date and time of hearings, and location of hearings” and chronological case summaries remotely accessible to the public. Indiana uses the Odyssey case management system, which allows the public to search cases by case numbers, party names, or attorneys: https://public.courts.in.gov/mycase/#/vw/Search.

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C. Discovery materials

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D. Pre-trial motions and records

Pretrial motions and records are open to public access unless Administrative Rule 9(G) excludes them. Ind. Admin. Rule 9(D)(1).

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E. Trial records

Trial records are open to public access unless Administrative Rule 9(G) excludes them. Ind. Admin. Rule 9(D)(1).

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F. Settlement records

Settlement records open to public access unless Administrative Rule 9(G) excludes them. Ind. Admin. Rule 9(D)(1). However, parties may enter into private settlement agreements that they deem confidential.

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G. Post-trial records

Post-trial records are open to public access unless Administrative Rule 9(G) excludes them. Ind. Admin. Rule 9(D)(1).

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H. Appellate records

Appellate records are open to public access unless Administrative Rule 9(G) excludes them. Ind. Admin. Rule 9(D)(1). Indiana uses the Odyssey case management system, which allows the public to search cases by case numbers, party names, or attorneys: https://public.courts.in.gov/mycase/#/vw/Search.

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I. Other civil court records issues

Indiana Administrative Rule 9(G)(2)(g) mandates that information identifying witnesses or victims in civil protection order proceedings shall be excluded from the public record.

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VII. Jury and grand jury access

Access to jury information is somewhat limited to protect juror safety and privacy. See Jury Rule 10. Grand jury access is likewise limited given the policies behind grand jury secrecy, including preventing the escape of those who may be indicted and preventing attempts to influence grand jurors or witnesses. Hinojosa v. State, 781 N.E.2d 677, 681 (Ind. 2003).

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A. Access to voir dire

There is little Indiana case law on public access to voir dire. However, the Indiana Court of Appeals in an unpublished opinion addressed the question of whether a defendant was entitled to a free copy of a voir dire transcript from his case. May v. Allen, No. 28A04–1601–PL–114, 2016 WL 3369550, *4 (Ind. Ct. App. June 16, 2016). The trial judge stated that the transcript was available for copying for a fee, and the appellate court held that the judge complied with the Access to Public Records Act. Id. at *5. May v. Allen thus suggests that voir dire transcripts are publicly accessible.

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B. Juror identities, questionnaires and other records

According to Jury Rule 10, “[p]ersonal information relating to a juror or prospective juror not disclosed in open court is confidential, other than for the use of the parties and counsel. The court shall maintain that confidentiality to an extent consistent with the constitutional and statutory rights of the parties.”

The judge determines whether a jury may be anonymous on a case-by-case basis, depending on whether “(a) the trial court concludes that there is a strong reason to believe that the jury needs protection; and (b) it takes reasonable precautions to minimize the potential prejudice to the defendant and ensure that his fundamental rights are protected.” Major v. State, 873 N.E.2d 1120, 1127 (Ind. App. 2007); see also Brewington v. State, 981 N.E.2d 585, 592–595 (Ind. Ct. App. 2013) (vacated in part, 7 N.E.3d 946) (holding that the trial court did not abuse its discretion in impaneling an anonymous jury). See Major, 873 N.E.2d at 1126–28 (citations and footnotes omitted), for a discussion on the policy considerations concerning anonymous juries:

“An anonymous jury is one in which certain identifying information, particularly jurors’ names, is withheld from the public as well as from the parties themselves. While it appears that there is no Indiana law on this issue, multiple federal courts and state courts, including the Seventh Circuit Court of Appeals, have considered the question of anonymous juries. In deeming anonymous juries to be ‘an extreme measure,’ the Seventh Circuit has observed that the empanelment of an anonymous jury implicates a defendant’s Fifth Amendment right to a presumption of innocence because it ‘raises the specter that the defendant is a dangerous person from whom the jurors must be protected.’ Many courts, including the Seventh Circuit, have also observed that empaneling an anonymous jury may interfere with a defendant’s right to trial by an impartial jury under the Sixth Amendment. . . . Given these constitutional implications, many courts have similarly highlighted the rare circumstances in which anonymous juries are appropriate, deeming them a ‘last resort,’ and a ‘drastic measure.’

In spite of these constitutional limitations, however, courts have also recognized that ‘neither the right to a presumption of innocence nor the right to exercise peremptory challenges is a constitutional absolute; each, at times, must yield to the legitimate demands of trial administration and court-room security so long as steps are taken to ensure that the defendant receives a fair trial.’ Indeed, appellate courts considering the permissibility of anonymous juries have largely upheld their use. . . .

. . . .

‘Within these parameters the decision whether or not to empanel an anonymous jury is left to the [lower] court’s discretion.’ Accordingly, we review the trial court’s decision to empanel an anonymous jury for an abuse of discretion. . . .

We first observe that given the above authority indicating the widespread approval of the use of anonymous juries so long as (a) the trial court concludes that there is a strong reason to believe that the jury needs protection; and (b) it takes reasonable precautions to minimize the potential prejudice to the defendant and ensure that his fundamental rights are protected, we conclude that Indiana law should adopt a similar position. We do so especially in light of our prior treatment of Sixth Amendment rights, finding that they are fundamental but not absolute, and that they may give way in cases in which the government has an interest in inhibiting disclosure of sensitive information. See Williams v. State, 690 N.E.2d 162, 167 (Ind.1997) (observing that Sixth Amendment does not prohibit the exclusion of the public from a criminal trial where the witness fears retaliation).

In evaluating the instant case, we observe that pursuant to the above precedent and as the State concedes, a determination as to the propriety of an anonymous jury requires judicial consideration on a case-by-case basis and is not justifiable based solely upon a local rule authorizing the wholesale use of anonymous juries. Here, the trial court provided no case or fact-specific justification in permitting the empanelment of an anonymous jury. Indeed, the court’s only justification for empaneling this anonymous jury was the apparent local rule allegedly permitting Lake County juries to be anonymous, as well as the fact that the jurors’ names were available if necessary to resolve any improprieties. In light of our above standard requiring the trial court, in empaneling an anonymous jury, to make a factual determination that the jury needs protection, we conclude this was error. See Williams, 690 N.E.2d at 169-70 (holding that additional restrictions to the unfettered access of the public and press at trial must be justified by trial court findings).”

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C. Grand jury proceedings and records

Indiana Code 35-34-2-4(i) provides for the secrecy of grand jury proceedings:

“Grand jury proceedings shall be secret, and no person present during a grand jury proceeding may, except in the lawful discharge of his duties or upon written order of the court impaneling the grand jury or the court trying the case on indictment presented by the grand jury, disclose:

(1) the nature or substance of any grand jury testimony; or

(2) any decision, result, or other matter attending the grand jury proceeding.

However, any court may require any person present during a proceeding to disclose the testimony of a witness as direct evidence in a prosecution for perjury.”

Although grand jury proceedings “shall be secret,” the presence of an unauthorized person in the grand jury room is not per se grounds for dismissing the indictment. State v. Hardy, 406 N.E.2d 313, 316 (Ind. Ct. App. 1980). Rather, the defendant must show prejudice to his or her substantial rights. Id. Additionally, the Indiana Court of Appeals has held that grand jury proceedings under Indiana Code Section 35-34-2-4(i) include grand jury subpoenas. Pigman v. Evansville Press, 537 N.E.2d 547, 552 (Ind. Ct. App. 1989) (holding that grand jury subpoenas are excepted from public disclosure).

Indiana Code 35-34-2-10(b) provides for the secrecy of grand jury witness testimony:

“(b) The transcript of testimony of a witness before a grand jury may be produced only:

(1) for the official use of the prosecuting attorney; or

(2) upon order of:

(A) the court which impaneled the grand jury;

(B) the court trying a case upon an indictment of the grand jury; or

(C) a court trying a prosecution for perjury;

but only after a showing of particularized need for the transcript.”

However, grand jury transcripts may be disclosed if there is a showing of a “particularized need.” See Hinojosa v. State, 781 N.E.2d 677, 680 (Ind. 2003) (footnote and citations omitted) (“[W]e note that the general rule regarding grand jury transcripts is that they be kept secret. Ind. Code § 35-34-2-4(i) (1998). Indiana does not even recognize an absolute right of the accused to the pre-trial examination of grand jury minutes. In fact, it is a criminal offense to ‘knowingly and intentionally’ disclose information acquired in a grand jury proceeding unless compelled by law. Ind. Code § 35-34-2-10(a) (1998). However, the Legislature has created an exception to the general rule of secrecy by granting trial judges the discretion to release evidence in certain circumstances where a ‘particularized need’ can be shown. See Ind. Code § 35-34-2-10(b) (1998).”

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D. Interviewing jurors

There are circumstances under which jurors may not disclose information about a case. Jury Rule 29 provides that, if the jurors are separated during deliberations, they shall not discuss the case with anyone. Jury Rule 29. Likewise, Indiana Code Section 35-34-2-4(i) prohibits anyone who attends a grand jury proceeding from disclosing the nature or substance of the testimony or any decision, result, or other matter in the proceeding. Further, anyone present at a grand jury proceeding who knowingly or intentionally discloses evidence produced, what a juror said,

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VIII. Proceedings involving minors

The opening and closing of proceedings involving minors implicate important interests. See Taylor v. State, 438 N.E.2d 275, 280 (Ind. 1982) (“The state’s interest in preserving the anonymity of juvenile offenders is one which the United States Supreme Court has characterized as ‘a matter of its own policy in the administration of criminal justice.’”) (quoting Davis v. Alaska, 415 U.S. 308, 319 (1974)).

The juvenile court determines whether juvenile proceedings are closed to the public. Ind. Code § 31-32-6-2. Upon motion, the court may close proceedings during a child witness or victim’s testimony if the court finds that an allegation or a defense involves matters of a sexual nature and that closing the proceeding is necessary to protect the child’s welfare. Ind. Code § 31-32-6-4. There are also circumstances under which the court may close the proceeding during the testimony of a health care provider or counselor. See Ind. Code § 31-32-6-4(b), (c); Phelps v. State, 969 N.E.2d 1009, 1017–18 (Ind. Ct. App. 2012) (holding that the question of whether the juvenile proceedings should have remained open was a moot question). Indiana Code Section 31-32-6-5 provides factors for the court to consider when deciding whether closing a proceeding is necessary to protect the welfare of the child. But proceedings in juvenile court involving adults charged with contempt of court or criminal charges must be tried in open court. Ind. Code § 31-32-6-4-1.

The general rule is that all juvenile court records are confidential, except as provided under Indiana Code Chapter 31-39-2. Ind. Code § 31-39-1-2. For example, there are circumstances in which a juvenile court may grant a school access to juvenile court records. Ind. Code § 31-39-2-13.8; see also Edelen v. State, 947 N.E.2d 1024, 1031 (Ind. Ct. App. 2011) (holding that a transcript of a juvenile’s testimony was admissible in the juvenile’s subsequent prosecution for perjury).

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A. Delinquency

Indiana Code Section 31-39-2-8 governs public access to records of juvenile delinquency proceedings. The general rule is that juvenile records are available to the public, with restrictions, whenever a petition is filed alleging that a child is delinquent based on the following acts: (1) an act that would be murder or a felony if committed by an adult, (2) an aggregate of two unrelated acts that would be misdemeanors if committed by an adult if the child was at least twelve (12) years of age when the acts were committed; or (3) an aggregate of five unrelated acts that would be misdemeanors if committed by an adult if the child was less than twelve (12) years of age when the acts were committed. Ind. Code § 31-39-2-8(a). Subsection (b) of Indiana Code Section 31-39-2-8 limits the types of information or documents that may be released. Ind. Code § 31-39-2-8(b).

Indiana Code Section 31-32-6-3 provides that delinquency proceedings are open to the public whenever a petition alleges that the child has committed an act that would be murder or a felony if committed by an adult, except as Indiana Code Section 31-32-6-4 provides. See also Phelps v. State, 969 N.E.2d 1009, 1017–18 (Ind. Ct. App. 2012) (holding that the question of whether the juvenile proceedings should have remained open was a moot question).

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B. Dependency

The juvenile court determines whether juvenile proceedings are closed to the public, Ind. Code § 31-32-6-2, and the general rule is that all juvenile court records are confidential, except as provided under Indiana Code Chapter 31-39-2. Ind. Code § 31-39-1-2. For cases analyzing public access to Child in Need of Services (“CHINS”) proceedings and records, see In re TB, 895 N.E.2d 321, 342–43 (Ind. App. 2008) (holding that the juvenile court could grant a newspaper access to CHINS records) and In re KB, 894 N.E.2d 1013, 1017 (2008) (holding that the trial court could not grant media access to CHINS records).

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C. Other proceedings involving minors

Paternity records created after July 1, 1941 and before July 1, 2014 that were confidential under statutes in force between those dates are excluded from the public record. Public Law 1-2014, effective July 1, 2014, changed the blanket exclusion of juvenile paternity records. Under the current rule, juvenile paternity case records created on or after July 1, 2014, are accessible to the public, except as Administrative Rule 9(G) and other state and federal laws deem them not confidential. See Order Amending Administrative Rules: https://www.in.gov/judiciary/files/order-rules-2014-0610-admin.pdf.

Further, many records associated with adoptions are confidential, including adoption petitions and evidence from adoption hearings. Ind. Code § 31-19-19-1(a). Files and records of the court pertaining to adoption proceedings are not open to public inspection, except as provided in Indiana Code Section 31-19-13-2(2). Ind. Code § 31-19-19-1(b).

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D. Prohibitions on photographing or identifying juveniles

Indiana Administrative Rule 9(G)(2)(g) mandates that information identifying witnesses or victims in juvenile proceedings shall be excluded from the public record. However, names, addresses, phone numbers, and dates of birth are not excluded, except that juveniles who are the victims of sex crimes shall only be identified by initials.

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E. Minor testimony in non-juvenile courts

Trial records are open to public access unless Administrative Rule 9(G) excludes them. Ind. Admin. Rule 9(D)(1). There is no statutory or case law on this issue, so minor testimony in non-juvenile courts is presumably publicly accessible.

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IX. Special proceedings

This section addresses special proceedings, including tribal courts, probate, competency and commitment proceedings, and attorney and judicial discipline.

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A. Tribal Courts in the jurisdiction

There are no tribal courts in Indiana.

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B. Probate

Indiana Code Sections 29-1-7, et seq. governs probate. Nothing limits access to probate court, but certain records within probate proceedings may be confidential. For example, Administrative Rule 9(G)(2)(h) bars public access of complete account numbers of specific assets, loans, bank accounts, credit cards, and personal identification numbers. Note that Administrative Rule 9 includes probate courts. See Admin. Law 9(C)(4) (defining “Court” as including probate courts); 9(C)(5) (defining “Clerk of Court” as including Clerk of the Probate Court).

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C. Competency and commitment proceedings

Indiana Administrative Rule 9(G)(1)(d) explicitly excludes from public access all court records of mental health cases filed under Indiana Codes Article 12-26 (“Voluntary and Involuntary Treatment of Mentally Ill Individuals”). Relatedly, when there is a substantial probability that a defendant cannot understand the proceedings, the defendant will be retained, possibly to a state institution. Ind. Code § 35-36-3-3(b). At that point, if commitment proceedings are held, those court records would also be excluded from public access. See Ind. Code § 12-26, et seq.

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D. Attorney and judicial discipline

Under Indiana Administrative Rule 9(C)(4), regarding access to court records, “Court” includes the Indiana Supreme Court, which governs attorney and judicial discipline. See Indiana Disciplinary Rule 23, § 1(b) (“The Supreme Court has exclusive jurisdiction of all cases in which an attorney is charged with misconduct under this Rule.”); Disciplinary Rule 25, § I(A) (“The Supreme Court of Indiana (the Supreme Court) has exclusive, original jurisdiction for the discipline, removal, and retirement of all judicial officers of this state.”).

Grievances filed with the Indiana Supreme Court Disciplinary Commission are maintained confidentially, as are responses and investigatory materials.  Ind. R. Admis. & Disc. 23 § 22(a)(3).  After a Disciplinary Complaint has been filed with the Supreme Court, all papers filed “shall be open and available to the public, except as provided by Admin. R. 9.” Ind. R. Admis & Disc. 23, § 22(a)(1). Additionally, all proceedings are generally open to the public after a Disciplinary Complaint is filed, Ind. R. Admis. & Disc. 23, § 22(a)(2), but officers may order a hearing or portions of a hearing to be closed or may order evidentiary exhibits to be sealed if necessary for any of the following purposes: (1) for the protection of witnesses; (2) to prevent likely disruption of the proceedings; (3) for the security of the hearing officer or any of the participants at the proceedings; (4) [t]o prevent the unauthorized disclosure of attorney-client confidences not at issue in the proceeding; (5) to protect medical information; and (6) for any other good cause shown which in the judgment of the hearing officer requires the hearing to be closed. Note that communications among the Disciplinary Commission and conditional agreements, advisory letters, and other particular documents are not open to the public. See Ind. R. Admis. & Disc. 23, § 22(a)(4), (5).

The Supreme Court publishes disciplinary orders and opinions online: http://www.in.gov/judiciary/2768.htm.

For judicial discipline, the Commission must not publicly disclose information relating to a complaint, inquiry, or investigation before formal charges are filed and served, with exceptions. Disciplinary Rule 25, § VIII(B)(1). After formal charges are filed, all pleadings and proceedings are public absent extraordinary circumstances. Disciplinary Rule 25, § VIII(B)(2). Commission deliberations, settlement conferences, and proposed settlement agreements are confidential, but settlement agreements submitted to the Supreme Court become public when the Supreme Court accepts the agreement and issues an opinion resolving the case. Disciplinary Rule 25, §VIII(B)(3).

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E. Immigration proceedings

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F. Other proceedings

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X. Restrictions on participants in litigation

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A. Media standing to challenge third-party gag orders

There is little Indiana law on whether the media may challenge third-party gag orders. See S. Bend Tribune v. Elkhart Circuit Court, 691 N.E.2d 200, 201 n.3 (Ind. 1998) (“The order allowing intervention [by media outlets to quash a gag order preventing trial participants from speaking with the media] is unchallenged and confers standing. We express no opinion as to whether the Media generally has sufficient standing to make a challenge such as this.”).

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B. Gag orders on the press

The Indiana Court of Appeals held that Judicial Rule 2.17, which prohibits broadcasting during court sessions, also prohibits broadcasting of courtroom recordings after the court proceedings have concluded. WPTA-TV v. State, 86 N.E.3d 442, 447 (Ind. Ct. App. 2017). The Indiana Court of Appeals also held that Judicial Rule 2.17 does not violate the First Amendment of the United States Constitution as an impermissible prior restraint. Id. at 449; see also Howard Publ’ns., Inc. v. Lake Michigan Charters, Ltd., 649 N.E.2d 129, 134 (Ind. Ct. App. 1995) (“We hold that protective orders may limit a third party’s use of information acquired from court records of discovery without violating the First Amendment, and the particular order entered in this case is valid in its scope. Furthermore, we find that such a protective order becomes effective when issued even though a third party secured access to the discovery materials before the order was entered.”). But see Howard Publ’ns., Inc. v. Lake Michigan Charters, Ltd., 658 N.E.2d 582, 583, 584 (Ind. 1995) (Sullivan, J. dissenting from the Supreme Court’s evenly-split denial of petition to transfer) (“[A]ny prior restraint of expression bears a heavy presumption against its constitutional validity. The interest advanced by the Court of Appeals, preserving the integrity of the judicial system by assuring the availability of protective orders to protect the discovery procedure, fails to overcome this presumption.”) (citations omitted).

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C. Gag orders on participants

In In re Paternity of K.D., the Indiana Court of Appeals held that a trial court order in a child custody proceeding was an invalid prior restraint on the mother’s free speech rights. 929 N.E.2d 863 (Ind. Ct. App. 2010). Although the part of the order that prohibited the mother from discussing the contents of the juvenile records was permissible under statutory law, the provision prohibiting the mother from speaking about the paternity case with anyone was overbroad. Id. at 874–75; see also Shallenberger v. Hope Lutheran Church, 449 N.E.2d 1152, 1157 (Ind. Ct. App. 1983) (setting aside restrictions on communications between putative class members before class certification).

Further, courts have held that gag orders on participants in a case are not impermissible prior restraints on the press. S. Bend Tribune v. Elkhart Circuit Court, 691 N.E.2d 200, 202 (Ind. 1998) (“We fail to see how the amount and type of publicity changes the holding that a gag order on trial participants does not constitute a prior restraint upon the press. . . . The Media is not prevented from covering the trial by this gag order. The only parties prevented from speaking are the trial participants and they are not parties to this appeal. We agree with Dow Jones and hold that a gag order placed solely upon trial participants does not constitute a prior restraint upon the press.”).

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D. Interviewing judges

Judges may be interviewed, except that the judges may not violate the Indiana Code of Judicial Conduct when giving interviews. The Indiana Code of Judicial Conduct may be found here: http://www.in.gov/judiciary/rules/jud_conduct/. Additionally, the Code provides that judicial candidates may receive questionnaires or requests for interviews from the media or other organizations. Rule 4.1, Comment 17. The Code advises responding candidates to “give assurances that they will keep an open mind and will carry out their adjudicative duties faithfully and impartially if elected” to avoid violating Rule 4.1(A)(13), which prohibits judges and judicial candidates from making pledges, promises, or commitments that are inconsistent with their impartiality regarding issues likely to come before the court. Rule 4.1, Comment 17.

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XI. Other issues

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A. Interests often cited in opposing a presumption of access

While Indiana Administrative Rule 9 promotes broad access to public records, it recognizes certain limits. For example, the purpose of the Rule includes protecting individual privacy interests and proprietary business information. Admin. Rule 9(A)(2); see also Rule 9(A) Commentary (“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.”).

Open access to courts often protects judicial integrity, but the Indiana Court of Appeals recently stated that limiting the use of court recordings can also promote judicial integrity: “Witnesses and other actors in the current courtroom hearings proceed with the understanding that although their words are recorded, these recordings are used solely within the judicial realm, thereby protecting the effectiveness, reliability, and fairness of the judicial system. Permitting the audio of a proceeding to be broadcast to the public in general by way of any type of media, would have an intimidating impact, not only on the behavior of the witnesses and other actors—causing possible fear and reluctance to testify—but also on the openness and candidness of any trial testimony.” WPTA-TV v. State, 86 N.E.3d 442, 447 (Ind. Ct. App. 2017).

Arguments against open access are acute in juvenile cases. See Taylor v. State, 438 N.E.2d 275, 278–280 (Ind. 1982) (referring to the need to protect juveniles from the dissemination of information for minor offenses, including protecting juveniles from the stigma of their mistakes of their youth and undue embarrassment). But see The Movement to Open Juvenile Courts: Realizing the Significance of Public Discourse in First Amendment Analysis, 39 Ind. L. Rev. 659 (2006).

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B. Cameras and other technology in the courtroom

The “Cameras in the Courtroom” guide explains that the media must fax a request to be a candidate for the media pool covering a Supreme Court argument. In the Court of Appeals, the media must request permission from the three-judge panel to allow equipment in the courtroom. However, appellate oral arguments are webcast live as they occur in the courtroom. Videos of oral arguments may be found here: http://mycourts.in.gov/arguments/. Cameras and recording in the trial courts are prohibited as outlined in Canon 2 of the Code of Judicial Conduct, Rule 2.17. The rule provides:

“Except with prior approval of the Indiana Supreme Court, a judge shall prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions, except that a judge may authorize:

(1) the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record, or for other purposes of judicial administration;

(2) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings;

(3) the photographic or electronic recording and reproduction of appropriate court proceedings under the following conditions:

(a) the means of recording will not distract participants or impair the dignity of the proceedings;

(b) the parties have consented, and the consent to being depicted or recorded has been obtained from each witness appearing in the recording and reproduction;

(c) the reproduction will not be exhibited until after the proceeding has been concluded and all direct appeals have been exhausted; and

(d) the reproduction will be exhibited only for instructional purposes in educational institutions.”

See also Van Orden v. State, 469 N.E.2d 1153, 1157 (Ind. 1984) (rejecting defendant’s claim “that she was denied a fair and public trial due to the failure of the trial court to televise the proceedings”) (citing Nixon v. Warner Comm’cns, 435 U.S. 589 (1978)).

The Indiana Court of Appeals held that Judicial Rule 2.17, which prohibits broadcasting during court sessions, also prohibits broadcasting of courtroom recordings after the court proceedings have concluded. WPTA-TV v. State, 86 N.E.3d 442, 447 (Ind. Ct. App. 2017). The Indiana Court of Appeals also held that Judicial Rule 2.17 does not violate the First Amendment of the United States Constitution as an impermissible prior restraint. Id. at 449.

In another case, the Indiana Court of Appeals held that allowing the press to give live updates during a murder trial through Twitter did not deprive the defendant of due process. Compton v. State, 58 N.E.3d 1006, 1011–12 (Ind. Ct. App. 2016).

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C. Tips for covering courts in the jurisdiction

Structure of the Court System. The Indiana court system is comprised of superior and circuit courts, the Court of Appeals, and the Indiana Supreme Court. The Indiana court system also includes the Tax Court, small claims courts, traffic courts, commercial courts, and juvenile courts, among others. 

Contact Information for Courts in Indiana. The Director of Courts and Clerks in Indiana can be found here: https://www.in.gov/judiciary/files/court-directory.pdf.

Obtaining Transcripts. To request a transcript, submit an Access to Public Records Request or contact your local court. A sample letter is available online: https://www.in.gov/pac/files/sample_records_request_letter.pdf. Additionally, Indiana Courts provide specific contacts for the media: http://www.in.gov/judiciary/2802.htm. 

Covering High-Profile Cases in Indiana. When covering high profile cases, the media is advised to request access early to cover the case with cameras in the courtroom. The “Cameras in the Courtroom” guide suggests that any photographer wishing to cover a Supreme Court argument contact the Court approximately 40 hours before the scheduled time. See https://www.in.gov/judiciary/2721.htm.

Tips on Decorum in Indiana Courts. Always show the judge and the court staff respect, refraining from interrupting and respecting the court’s particular procedures. Be on time and wear professional attire.

Suggested Resources on Indiana Courts.

 

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