Authorization Required: Restricting Access to Criminal History Information
October 31, 2011 by James R. Walker
The Indiana General Assembly passed Public Law 194-2011 (HEA 1211) earlier this year allowing individuals to petition courts to restrict access to certain criminal records. This law creates two new proceedings by amending Indiana Code Title 35, Criminal Law and Procedure, Article 38, Proceedings Following Dismissal, Verdict or Finding. It allows a person to petition for restriction of arrest records by adding a new section 5.5 to Chapter 5, Expungement of Arrest Records (I.C. 35-38-5), and allows a person to petition for restriction of conviction records by adding a new chapter entitled “Restricted Access to Conviction Records.” (I.C. 35-38-8)
A person who has been charged but not convicted of a crime, or has had a conviction vacated, may apply for restricted access to that record. A person may also petition to restrict access to conviction records after 8 years have elapsed since the end of the sentence. It is only available to an adult who has been convicted of a misdemeanor or a nonviolent Class D felony or who had been adjudicated a delinquent child for committing that offense. A petitioner may not have a felony conviction after fulfilling all of his or her sentencing obligations.
Proceedings to Restrict Disclosure When a Person is Not Convicted or the Conviction is Vacated
The new petition and procedures to restrict disclosure of arrest records are similar to those for a petition to expunge arrest records (I.C. 35-38-5-1). The primary difference is the relief granted: under the current law the arrest record is expunged; under the new section at I.C. 35-38-5-5.5, the arrest records are restricted from disclosure to noncriminal justice organizations or individuals.
A person who is charged with a crime but who (1) is not prosecuted or whose charges are dismissed, (2) is acquitted of all criminal charges, or (3) is convicted of the crime and the conviction is subsequently vacated, may petition a court to order the state police not to disclose or permit disclosure of the person’s limited criminal history to noncriminal justice organizations or individuals (I.C. 35-38-5-5.5).
The petition must be verified and filed in the court in which the charges were filed if the person was not prosecuted or the charges were dismissed; and filed in the trial court if acquitted or the conviction vacated. The petition should be filed under the case number of the original criminal case, but if prosecution was dismissed before a case number was assigned, the petition should be assigned an MC number.
A person may file a petition no earlier than 30 days after acquittal or dismissal of the charges. If the conviction is vacated, then a petition may be filed no earlier than 365 days after the order is final or certification of the opinion or memorandum decision vacating the conviction. The petition must be served on the prosecuting attorney and the Indiana State Police Department, which is the state central repository for criminal records under I.C.10-13-3-24. A prosecuting attorney may file a notice of opposition with the court within 30 days after the petition is filed.
The court may summarily grant or deny the petition or set the matter for hearing. If the court does not summarily grant or deny the petition, it must set the matter for a hearing if the prosecuting attorney files a notice of opposition. After a hearing is held, the court must grant the petition unless the petitioner is being reprosecuted on charges related to the original conviction. If the petition is granted, the court shall order the state police department not to disclose or permit disclosure of the petitioner’s limited criminal history information under I.C.10-13-3-27 to a noncriminal justice organization or an individual.
Proceedings to Restrict Access to Conviction Records for Misdemeanor and Non-Violent Class D felony Convictions (I.C. 35-38-8)
A court may grant a petition to restrict access to criminal history information related to misdemeanor or nonviolent Class D felony convictions in certain circumstances under I.C. 35-38-8. The law does not apply to sex or violent offenders with the limited exception of an individual whose status as a sex offender is solely due to his conviction for sexual misconduct with a minor (IC 35-42-4-9) if the person was not 21 years of age, the relationship between the person and the victim was a dating relationship or an ongoing personal (and not family) relationship, the person was not more than 4 years older than the victim, there was no force or influence of a drug or controlled substance, and the person was not in a position of authority or substantial influence over the victim [defense described in IC35-42-4-9(e)].
A person, at least eight (8) years after completing his or her sentencing obligations, may petition the sentencing court to order the state police department to restrict access to records of his or her arrest and involvement in criminal or juvenile court proceeding. A person is eligible to petition only if convicted of a misdemeanor or a Class D felony that did not result in injury to a person.
This is a civil proceeding for which an MI case type should be assigned and the regular civil filing fee assessed. If the petition seeks to restrict access to multiple convictions, a single petition may be filed, provided that the convictions were all in the same court. The Indiana State Police Department should be served as it is the official state repository for criminal history information.
A court must grant the petition if: (1) the person is not a sex or violent offender; (2) the person’s conviction or adjudication was for a misdemeanor or a Class D felony not resulting in injury to a person; (3) eight years have passed since the person completed the sentence and fulfilled all obligations imposed as part of the sentence, and (4) the person has not been convicted of a felony since the person completed the sentencing obligations (I.C. 35-38-8-4).
The court granting the petition must order the department of correction and each law enforcement agency incarcerating, treating, or providing services to prohibit the release without a court order of the person’s records or information to a noncriminal justice agency. The court must also prohibit the release without a court order of the same information by any person who provided treatment or other services to the petitioner under court order and any state, regional, or local central repository for criminal history information to a noncriminal justice agency.
If the court orders the records restricted under this provision, a person may then legally state on an application for employment, or any other document, that he or she has not been arrested for, or convicted of, the felony or misdemeanor listed in the restricted records (I.C. 35-38-8-7).
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, we recommend that it be done because failure to do so would largely frustrate the purposes of the statutes.
The court has authority under Administrative Rule 9(G)(1)(c) to exclude information from public access by specific court order. In granting relief to the petitioner in either of the above proceedings, the Division recommends that the court direct the clerk to remove the records from public access.
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.
A copy of the petition, whether filed under IC 35-38-8 or under IC35-38-5-5.5 should be mailed to the Indiana State Police, Records Division, IGN, 100 N. Senate Avenue, Room 301, Indianapolis, Indiana 46204.
The Division has developed a form petition for restricting access under IC 35-38-8 which may be found in the Indiana Supreme Court Self Service Center, courts.in.gov/selfservice.
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 restricted 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.