Sunday, October 28, 2012

Indiana: PUBLIC ACCESS TO MICROFILMED RECORDS CONTAINING RESTRICTED CRIMINAL HISTORY INFORMATION

"Indiana courts may now order court records restricted from public access under legislation that prohibits access to criminal history information. I.C. 35-38-5-5.5; I.C. 35-38-5. A dilemma is, however, present in allowing access to microfilmed records that may contain the restricted criminal history information. If the public is permitted to have unfettered access to those records, the public could see the restricted criminal history information. If the public is denied access to those records, the public is prevented from examining records that should be publicly accessible.

Under Ind. Administrative Rule 9(L), a court, court agency, or clerk of court employee who unintentionally and unknowingly discloses confidential or erroneous information is immune from liability for such a disclosure. Yet knowingly allowing public access to microfilmed records containing restricted criminal history information could put this immunity at some risk. An argument can also be made that the immunity contained in Admin. R. 9(L) applies only to court records declared confidential under Rules 9(G) and 9(H) and may not apply to records restricted by the statutes mentioned above.

The Division does not have a perfect solution to this dilemma"

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