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Friday, October 14, 2011
Ind. Gov't. - The new expungement (restricted access) law ...
Yesterday and again this morning the ILB posted about the meeting of a legislative interim committee looking at the expungement law passed last year, HEA 1211, now codified at IC 35-38-8 as Restricted Access to Conviction Records. Yesterday I wrote:
There was some testimony that the Supreme Court had issued rules on interpreting the expungement law and even had a webpage on this, including forms. I've never heard of this and can't find it on the Court's site.Later:
Okay, here may be the sample forms referenced at the Commission meeting today. They are located on the Indiana Courts civil forms page:Late this morning I received a timely note from Kathryn Dolan, Indiana Supreme Court Public Information Officer:
The Division of State Court Administration has received questions from trial court judges and clerks who have concerns about the logistics of restricting access to public records. The Division is working on providing guidance to these court officials. Our goal is to give judges and clerks meaningful direction on how to make daily court operations run smoothly while following the law.Some quotes from the new 3-page guidance, which is being referenced as "Chapter 39", and is dated 8/29/11:We have added a chapter that deals with the new law to our Administrative Manual that is posted on our website. Additionally, we have developed a form petition for relief under IC 35-38-8 that could be used by a self represented litigant and also posted it on our website. The Division Director of trial court management spoke about the new law at both the Northern District and Southern District Clerks Associations conferences last month.
Although the petition is to be filed in the sentencing court, the Division advises that proceeding to restrict access under I.C. 35-38-8 is a civil proceeding for which an MI case type should be assigned and the regular civil filing fee assessed. If the person seeks to restrict access to multiple convictions, they may be included in one petition, provided that the convictions were all in the same court. Although the statute is silent as to whom, if anyone, should be served with the Petition, the Division advises that the Indiana State Police Department should be served because it is specifically referred to in I.C. 35-38-8-3 and that department is the official state repository for criminal history information. * * *If the court grants the person’s petition, it must order the department of correction and each law enforcement agency or other person who incarcerated, provided treatment for, or provided other services to the person to prohibit the release of the person’s records or information related to the misdemeanor or nonviolent Class D felony in the person’s records to a noncriminal justice agency without a court order. Additionally, the court must order any state, regional, or local central repository for criminal history information to prohibit the release of the same information to a noncriminal justice agency without a court order.
Finally, if the court orders the person’s records restricted under the law, I.C. 35-38-8-7 provides that the person may legally state on an application for employment or any other document that he has not been arrested for or convicted of the felony or misdemeanor recorded in the restricted records.
Although neither I.C. 35-38-5-5.5 nor I.C. 35-38-8 expressly requires the court to restrict access to the court’s records to noncriminal justice agencies or persons, failure to do so would largely frustrate the purposes of the statutes. * * *
Because IC 35-38-8 includes a wide range of potential persons or entities who must be ordered not to disclose the information, the Division recommends that the court advise the petitioner that it is the petitioner’s responsibility to inform the court of all persons or entities who possess the information and only those persons or entities identified by the petitioner will be included in the court’s order restricting access. * * *
It is important to remember that an order restricting access is not the same as an expungement, and this is true whether the order is entered under I.C.35-38-5-5.5 or under I.C. 35-38-8-5. The records should still be available to the parties, their attorneys and to criminal justice agencies, but access to the records by noncriminal justice agencies is prohibited without a court order.
Posted by Marcia Oddi on October 14, 2011 12:41 PM
Posted to Indiana Courts | Indiana Government | Indiana Law