Some cases are embarrassing for the parties involved—with free, easy public access to many court records via the Internet, some people rue the day they ever decided to go to the courthouse and file a case.
For a variety of reasons, the parties would rather their employers, in-laws, landlords, or bank loan officers were oblivious to their legal history. Because of this, trial courts sometimes find themselves presented with a motion to seal the case records—whether it is a protection order case, a debt collection case, a dissolution of marriage case, or another matter that is potentially regrettable.
But once a case has been filed, what can a judge do? Can we “put the toothpaste back into the tube?”
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.
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. The statute [Ind. Code 5-14-3-5.5 (d) (1)-(5)] lists five elements the party asking for sealed records needs to prove:
- sealing the records is in the public interest;
- disseminating the information in the records will create a serious and imminent danger to the public interest;
- any prejudicial effect created by disseminating the information cannot be avoided by any reasonable method other than sealing the records (in other words, secrecy is the least restrictive means of accomplishing the goal);
- there is a substantial probability that sealing the records will be effective in protecting the public interest against the perceived danger; and,
- it is reasonably necessary for the records to remain sealed for a period of time.
Considering this burden of proof, parties seeking to seal records need to prove much more than embarrassment, inconvenience, or regret.
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.
A knowledgeable person might well ask, “What about Administrative Rule 9? Can I rely on that for authority to seal court records?” Yes—Administrative Rule 9(H) covers public access to information in court files that is not already confidential according to statute or court rule. Unlike the Access to Public Records law, which requires a party to the case to file a motion to seal the records, anyone may file a motion to seal under A.R. 9(H). This distinction may determine under which authority—the statute or the court rule—a judge should proceed to consider the matter of sealing records.
Like the Access to Public Records law, A.R. 9(H) contains some definite procedures that must be followed in order to have a trial court consider a request for secrecy, and for an order sealing records to be legitimate. First, any person affected by releasing the information in the court record has standing to request that the court file be sealed—not just a party to the case. The request to prohibit access has to be in writing, and it has to be verified. The person seeking the remedy must provide notice both to the parties and to anyone else the court directs, and provide proof of that notice to the court—or else show the court why notice could not, or should not, be given, while demonstrating the requestor’s reasons for prohibiting access to the information. Any person receiving notice has 20 days to respond to the motion to seal court records.
The rule authorizes the trial court to deny the request for sealing records without a hearing. If the court is not inclined to deny the request, however, the court must set the matter for a hearing—and like the statute, A.R. 9(H)(2) requires the court to post advance public notice of that hearing. Like the public records law, the rule sets forth a burden of proof—but A.R. 9’s burden is heavier. Under A.R. 9 (H), the person seeking the remedy must prove one of four elements by clear and convincing evidence:
- the public interest will be substantially served by prohibiting access;
- accessing, or disseminating, the information in the court records will create a significant risk of substantial harm to:
- the requestor,
- other people, or,
- the general public;
- if the court does not prohibit public access, there will be an unavoidable, substantial prejudicial effect to ongoing proceedings; or,
- the information should have been excluded from public access under A.R. 9 (G).
The rule requires the judge considering the request to balance all of the competing interests, and to state the reasons for either granting or denying the request in a written order. If a judge decides to grant a request to seal court records, the scope and duration of the order should be the least restrictive and most temporary possible.
The Commentary to A.R. 9 (H) states that there is a presumption of openness; and, “extraordinary circumstances” must exist in order for a court to decide that information which is normally publicly accessible should be sealed. Again, embarrassment, inconvenience, or regret will probably not outweigh the public’s substantial interest in an open, accessible court system. Finally, the Commentary notes that the remedy is not retroactive: sealing court records from public view is a prospective matter, something that occurs from the moment the judge signs the order.
For additional information on the Access to Public Records law or Administrative Rule 9, please contact David Remondini, Chief Deputy Executive Director, State Court Administration, at 317-233-8684 or firstname.lastname@example.org.