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Wednesday, September 19, 2012

Ind. Courts - Green paper filing, is it out of control?

Last week I wrote about my unsuccessful efforts to obtain a copy of a petition in the Charlie White case that had been filed as a confidential document.

Here is the appellate docket entry (29A05-1203-CR-00123). Note that I've highlighted the references to the color "green":

8/30/12 APPELLANT'S VERIFIED EMERGENCY PETITION TO STAY DIRECT APPEAL
AND REMAND TO FILE "DAVIS' PETITION" IN THE TRIAL COURT (6)
CERTIFICATE OF SERVICE (6) BY MAIL 08/30/12.
ENTERED ON 08/30/12 AS
8/30/12 ****NOTE: ORIGINAL OF PETITION TO STAY IS ON GREEN, ALL OTHER
COPIES ARE WHITE. ENTERED ON 08/30/12 AS
9/04/12 APPELLANT'S BRIEF (9) AND FOUR (4) VOLUME APPENDIX (1-GREEN)
FILED, CERTIFICATE OF SERVICE (9) BY MAIL 09/04/12. *ROTUNDA*
ENTERED ON 09/05/12 MC
9/19/12 TRIAL COURT CLERK NOTIFIED TO TRANSMIT TRANSCRIPT.

My failed effort to obtain a copy of this document (although a reporter obtained it from the court with no problem) led me to take a look at the procedure by which an attorney may file documents and designate them as "confidential." I wondered, can anything that might be potentially embarrassing be designated as confidential? How is this policed? The answers have surprised me.

I started at the trial level. TRIAL RULE 5(G) provides:

(G) Filing of Documents and Information Excluded from Public Access and Confidential Pursuant to Administrative rule 9(G)(1). Every document filed in a case shall separately identify information excluded from public access pursuant to Admin. R. 9(G)(1) as follows:
(1) Whole documents that are excluded from public access pursuant to Administrative Rule 9(G)(1) shall be tendered on light green paper or have a light green coversheet attached to the document, marked “Not for Public Access” or “Confidential.”

(2) When only a portion of a document contains information excluded from public access pursuant to Administrative Rule 9(G)(1), said information shall be omitted [or redacted] from the filed document, and set forth on a separate accompanying document on light green paper conspicuously marked “Not for Public Access” or “Confidential” and clearly designated [or identifying] the caption and number of the case and the document and location within the document to which the redacted material pertains.

(3) With respect to documents filed in electronic format, the trial court, by local rule, may provide for compliance with this rule in manner that separates and protects access to information excluded from public access.

(4) This rule does not apply to a record sealed by the court pursuant to IC 5-14-3-5.5 or otherwise, nor to records, documents, or information filed in cases to which public access is prohibited pursuant to Administrative Rule (9)(G).

Admin. R. 9(G)(1) concerns case records excluded from public access; they are listed:
(a) Information that is excluded from public access pursuant to federal law;

(b) Information that is excluded from public access as declared confidential by Indiana statute or other court rule, including without limitation [see list in rule, it includes certain adoption records, records of grand jury proceedings, etc.]

(c) Information excluded from public access by specific court order;

(d) Complete Social Security Numbers of living persons;

(e) With the exception of names, information such as addresses, phone numbers, and dates of birth which explicitly identifies:

(i) natural persons who are witnesses or victims (not including defendants) in criminal, domestic violence, stalking, sexual assault, juvenile, or civil protection order proceedings, provided that juveniles who are victims of sex crimes shall be identified by initials only; (ii) places of residence of judicial officers, clerks and other employees of courts and clerks of court;
unless the person or persons about whom the information pertains waives confidentiality;

(f) Complete account numbers of specific assets,, loans, bank accounts, credit cards, and personal identification numbers (PINs);

(g) All orders of expungement entered in criminal or juvenile proceedings;

(h) All personal notes and e-mail, and deliberative material, of judges, jurors, court staff and judicial agencies, and information recorded in personal data assistants (PDA's) or organizers and personal calendars.

So here is the problem. Case filings are public, with the exceptions listed in Rule 9. But many attorneys misunderstand the use of the green paper -- they believe, for instance, that any document with a social security number is to be filed on green paper, as confidential, rather than simply redacting the number and filing the number on green paper.

Others misuse Trial Rule 5 to make confidential, for instance, divorce papers. This is easy enough to do, there is no certification requirement, and no penalties.

And what is the remedy for a member of the public or press who wants to see a green paper filing? There effectively is none.

Admin. Rule 9(I), titled "Obtaining Access to Information Excluded from Public Access," is the only route. It presumes that the green sheet was used correctly and it requires the filing of a verified petition with the court, a hearing, and places the burden on the requestor to show:

(a) Extraordinary circumstances exist which requires deviation from the general provisions of this rule;

(b) The public interest will be served by allowing access;

(c) Access or dissemination of the information creates no significant risk of substantial harm to any party, to third parties, or to the general public, and;

(d) The release of information creates no prejudicial effect to on-going proceedings, or;

(e) The information should not be excluded for public access under Section (G) of this Rule.

Of course all this is difficult to do if the requestor does not know what is in the "confidential" document.

I contacted attorney Maggie Smith, Frost Brown Todd LLC, to see if I had missed anything. Her response:

I teach on Administrative Rule 9 all over the state and, in my opinion, it is universally misunderstood and misapplied at every level.

You’re right that many attorneys make mistakes out of ignorance, but you’ve also correctly recognized that some use green paper as a sword to keep documents that should not be confidential out of the public view, and Rule 9(I) really is no help unless you know what was being excluded (and Rule 9(I) puts a huge burden on someone if the documents should never have been put onto green paper in the first place).

The Court of Appeals fairly regularly issues orders to show cause re: why a document that was filed on green paper should not be made public, but nowhere near the level of actual violations (likely because doing so would, in my opinion, require a full-time attorney devoted just to policing green paper issues).

Posted by Marcia Oddi on September 19, 2012 10:10 AM
Posted to Indiana Courts