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Tuesday, October 28, 2014

Ind. Courts - Public Access Counselor opinion raises the question: Do we have "secret dockets" in Marion County?

Court Times, a publication of the Indiana Courts, has posted a June 26, 2014 article by Ruth Reichard titled "Sealing Court Records: The How and the Why (Not)."

"Trial courts sometimes find themselves presented with a motion to seal the case records," the author writes, but "once a case has been filed, what can a judge do? Can we 'put the toothpaste back into the tube?'" The article continues:

The default answer to this question is “no—not easily.” After all, Article 1, Section 12 of the Indiana Constitution states in pertinent part that “All courts shall be open . . .” The first section of Indiana’s Access to Public Records law, at Ind. Code 5-14-3-1, likewise contains a strong, unequivocal statement that “it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.” Further, the statute “shall be liberally construed to implement this policy and place[s] the burden of proof for the nondisclosure of a public record on the public agency that would deny access to the record . . .” Nevertheless, section 5.5 of the statute does offer a legal means by which courts can seal records. [ILB - access IC 5-14-3, the Access to Public Records Act (APRA), here]

So, assuming that a party has properly filed a motion to seal the case records under Ind. Code 5-14-3-5.5, can a judge simply decide it has merit and grant the motion without a hearing?

No. The court must hold a public hearing—at which the judge must consider any testimony and written briefs submitted by members of the general public, as well as the parties—the court must also post notice of the hearing in the courthouse. At the hearing, the person asking to seal the records must prove by a preponderance of the evidence that the need for the extreme remedy of secrecy outweighs the public policy of open records. * * *

If, after holding a hearing, the judge decides to seal all or part of the record, the order must contain findings of fact and conclusions of law. Finally, the statute also requires that the records be “unsealed” at the earliest possible time once the circumstances necessitating secrecy no longer exist.

Yesterday the ILB read an Oct. 24, 2014 advisory opinion from Public Access Counselor (PAC) Luke Brett, Re: Formal Complaint 14-FC-221; Alleged Violation of the Access to Public Records Act (“APRA”) by the Marion County Clerk."

The complaint, filed by George W. Pendygraft, was that the Marion County Clerk had violated the Access to Public Records Act (“APRA”), Ind. Code § 5-14-3, by failing to provide "a copy of the case file in a named lawsuit filed in Marion County Superior Court 4." However, as the PAC writes in the opinion, "the records you sought had been sealed by the Court and the file was not disclosable public record. * * * [The Court] entered an order on September 4, 2014 sealing the records in question. The issue as I see it is whether the Court properly sealed the records under the Access to Public Records Act." [The ILB has added some boldface emphasis in this and subsequent quotations from the PAC order.]

From the PAC opinion:

The Access to Public Records Act addresses how and under what circumstances a court may seal a public record. Ind. Code § 5-14-3-5.5 states:
(a)This section applies to a judicial public record.
(b) As used in this section, "judicial public record" does not include a record submitted to a court for the sole purpose of determining whether the record should be sealed.
(c) Before a court may seal a public record not declared confidential under section 4(a) of this chapter, it must hold a hearing at a date and time established by the court. Notice of the hearing shall be posted at a place designated for posting notices in the courthouse. * * *
Clearly the discretion to seal a record lies with the presiding Judge; however, it is also clear the procedures enumerated in subsection 5.5 must be followed. According to the Court’s order in 49D04-1312-PL-045851, the parties appeared for a status conference at which time the co-Defendant made an oral motion to the Court to seal the records in the case. It does not appear any notice of the proceeding was given and the public did not have an opportunity to testify or file a brief.

The obligation to hold such a hearing is on the presiding Judge. I spoke with the Honorable Cynthia Ayers, Judge of the Marion County Superior Court 4 and she indicated her decision to not hold a hearing was based on her decision confidential attorney-client communication was scattered amongst the documents. Because that kind of communication is declared confidential by several Indiana authorities, she sealed all the records in the case. Furthermore, she feared a hearing would compromise the integrity of the privilege as attorneys may have to give testimony regarding the communication itself.

You clearly disagree with the Judge’s determination; however, that is a matter of law and under the jurisdiction of the court. There are alternative appellate remedies if you take exception with her ruling and choose to intervene, however, none of those remedies may be issued by the Indiana Public Access Counselor.

Some background. In 2006 the ILB has a number of posts about an Orange County casino situation where the judge sealed an entire lawsuit, including the docket itself, for nearly two months. In a June 20, 2006 post, the ILB wrote:
This is a matter of enormous local, and indeed, state-wide interest. I'm told that reporters were even unable to confirm last week that a suit had been filed. Although the ILB has had a number of entities about 'secret dockets' in other states, apparently we do have some in Indiana also.
From an Aug. 1, 2006 post, quoting a story by Roger Moon in the Bedford Times-Mail:
PAOLI - Court documents involving two Orange County casino lawsuits were made available for public review in a decision that came this morning in Orange Circuit Court.

Orange Circuit Court Judge Larry Blanton had sealed the records in early June.

He said today, “I took the unusual and unprecedented action for a variety of reasons.” One reason, Blanton said, was to allow him more time to research the law. He said, “I acted with an overabundance of caution.” * * *

At the parties' request, the documents were sealed, meaning closed to the public. Lauth and Cook have agreed not to discuss the lawsuits publicly.

Steve Ferguson, chairman of the Bloomington-based Cook Group, Inc., said after the hearing, “Of course, you would like to keep this kind of dispute between the two parties, but we clearly understand what the law says.”

Today's ruling came after attorneys for newspapers argued that the records should be made public and that neither Cook nor Lauth representatives had met the burden of proof on why the cases should remain sealed.

Angela Parker, an attorney representing a number of newspapers, including the Times-Mail and its sister newspaper, the Herald-Times of Bloomington, said in court, “The public wasn't informed and didn't know why (the cases were sealed). The need to speculate put the public at a disadvantage.”

Arguments for opening the case also were presented by the Indiana Attorney General's office. Attorney General Steve Carter, in a statement released over the weekend, said, “Judicial proceedings regarding gambling should be subject to public observance and review. The public's interests are likely to be impacted by litigation between these two private entities. Any time there is government involvement with respect to the gambling industry, it should be subject to heightened public scrutiny.”

Back to the Marion County case. According to the Oct. 24, 2014 PAC opinion, the judge "sealed all the records in the case." The PAC opinion does not give the name of the case. At one point on p. 2 a reference is made to "the Court’s order in 49D04-1312-PL-045851," but the ILB has been unable to locate any cases that matched this search criteria.

Is this an example of a secret docket in a Marion County court? Or is there another explanation?

Posted by Marcia Oddi on October 28, 2014 02:11 PM
Posted to Indiana Courts | Indiana Government