Watchdog or lapdog? 

Indiana Supreme Court's new secrecy rule

Indiana Supreme Court’s new secrecy rule

Indiana’s journalism community faces a quandary: watchdog or lapdog? The Indiana Supreme Court last February announced the adoption of a sweeping new secrecy rule that takes effect on Jan. 1, ostensibly in preparation for placing court documents on the Internet next year.

Among other things, Administrative Rule 9 omits from the public realm all “identifying” information about crime victims and witnesses, jurors and potential jurors.

Much of the information covered under the new rule has always been available at the courthouse without causing any problems at all but the justices deem the material too sensitive to be practically and readily available on the Internet with the click of a mouse.

The quandary? The court has offered to provide “enhanced access” for “legitimate” media to information and records that otherwise will be subject to administrative hurdles under the new rule.

What is the legitimate media? Does it include so-called alternative newspapers, Internet news providers, freelancers, bloggers, etc.? The Indiana Supreme Court referred queries to Steve Key, general counsel for the Hoosier State Press Association. He says the court has yet to make this distinction clear.

Key, one of two media representatives on a 29-member “advisory” committee appointed by the court to consider the rule change, has gone on record supporting “enhanced access” for the media because it is better than the alternative.

Under the concept of enhanced access, Key says, “legitimate” journalists will not be required to jump the same court-imposed hurdles as members of the general public.

Ordinary citizens seeking records made secret under the rule will be required to prove an “extraordinary circumstance” or show that the release of the records satisfies an important public interest. The general public will have to file court documents, attend court hearings and possibly wait for months for a decision.

The HSPA has not yet formally decided whether it will accept the court’s offer of preferential treatment. The HSPA formed a subcommittee in June to study the matter. Don Asher, deputy executive editor and general manager of the Valparaiso Vidette-Times, is heading the subcommittee. He said recently that he expects its first meeting to take place in about a month.

Not all states have taken the defensive posture adopted by the Indiana Supreme Court with respect to the Internet.

Indiana’s rule contrasts sharply with that of New York State, which, after California, has the largest state court system, with 3 million new cases filed each year.

New York Chief Judge Judith S. Kaye appointed a 22-member commission headed by Floyd Abrams, the First Amendment lawyer, to study the issue.

The New York court adopted a new rule in February that strongly affirms the importance of keeping court documents accessible to the public, even on the Internet. Virtually nothing in New York’s judicial system will be withheld from the Internet that is currently public, with a few minor and understandable exceptions. For example, only the first four digits of Social Security numbers now will be used in court documents.

The New York commission held three public hearings, whereas the Indiana Supreme Court failed to hold even a single public hearing. Even the “advisory” committee didn’t get to vote on the measure. The new rule was simply “announced” by Chief Justice Shepard.

The media traditionally has eschewed favorable treatment by the government to avoid compromising its position as the public’s watchdog. For example, media groups rejected special treatment when the U.S. Congress passed the Driver’s Privacy Protection Act in 1994 to protect personal information in driver records. Journalists say this measure, which was intended to prevent stalking, has hampered reporting that relied on driver records.

The Society of Professional Journalists Code of Ethics recognizes that the press has a “special obligation to ensure that the public’s business is conducted in the open and that government records are open to inspection.”

Other non-court affiliated members on the Indiana Supreme Court’s “advisory” committee were three representatives from area domestic violence agencies, who traditionally lobby to close public records to protect their clients, and a former director of the Indiana Civil Liberties Union. No dissenting or minority report was filed.

In addition to information affecting lay participants in court proceedings, Administrative Rule 9 also places off-limits to the public a wide range of information about the judiciary itself — including all personal notes, e-mail and deliberative material received and sent by the justices, court staff and judicial agencies.

Some experts predict the new rule will make it much harder to investigate judicial corruption and sets a questionable precedent regarding state employees’ use of state-owned computer equipment.

The Indiana Supreme Court’s new rule also exempts from disclosure certain records pertaining to complaints and disciplinary proceedings against judges and attorneys, information about judges and lawyers who fail to satisfy mandatory legal education requirements and criteria used to decide applications of out-of-state lawyers who seek to practice law in Indiana.

The initial proposed rule change submitted by the court to the advisory panel a year ago was even more draconian, says Charles N. Davis, executive director of the Freedom of Information Center at the School of Journalism at the University of Missouri.

He complained to Shepard, “You are seeking to derail the philosophy of the Indiana Constitution and push court business into the shadows.”

Among other things, the court initially wanted to exempt all of its correspondence, both written and e-mail, plus minutes of judicial meetings from public scrutiny. Davis says the final rule approved by the court is one of the most restrictive in the nation.

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