OPINION OF THE PUBLIC ACCESS COUNSELOR
CHRISTIAN SHECKLER,
Complainant,
v.
ELKHART SUPERIOR AND CIRCUIT COURT,
Respondent.

Formal Complaint No.
18-FC-05

Luke H. Britt
Public Access Counselor

BRITT, opinion of the Counselor:
This advisory opinion is in response to the formal complaint
alleging the Elkhart Superior and Circuit Court (“Court”)
violated the Access to Public Records Act1 (“APRA”). The
Court has responded via the Hon. Judge Teresa L. Cataldo.
In accordance with Indiana Code § 5-14-5-10, I issue the following opinion to the formal complaint received by the Office of the Public Access Counselor on January 12, 2017.

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Ind. Code §§ 5-14-3-1 to -10

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 BACKGROUND
Christian Sheckler (“Complainant”), a reporter for the South
Bend Tribune, filed a formal complaint alleging the Court
violated the APRA by wrongfully denying copies of court
records.
On October 16, 2017, the Complainant filed a public records
request to the Court seeking inspection or copying of three
separately identified cases. The request was significantly
broad and sought the entirety of the files in those cases, including exhibits. The request was partially granted via
Court orders explaining that some of the materials may be
withheld for confidentiality and discretionary reasons. The
Court’s response to the formal complaint presents those arguments as well, citing various subsections of Administrative Rule 9 as well as the Access to Public Records Act.

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 ANALYSIS
APRA states that “(p)roviding persons with information is
an essential function of a representative government and an
integral part of the routine duties of public officials and employees, whose duty it is to provide the information.” Ind.
Code § 5-14-3-1. The Elkhart Superior and Circuit Court is
a public agency for the purposes of the APRA. Ind. Code §
5-14-3-2(n). Therefore, unless an exception applies, any person has the right to inspect and copy the Courts’ public records during regular business hours. Ind. Code § 5-14-3-3(a).
A public agency is required to make a response to a written
request that has been mailed within seven (7) days after it is
received. Ind. Code § 5-14-3-9(c).
The positions of both parties are appreciated and well-received. Instead of a restatement of the complicated factual
and procedural details, it may be more beneficial to give a
broader perspective of the interplay between the judiciary’s
administrative rules and the Access to Public Records Act
– both of which refer (and defer) to each other throughout
their respective provisions.
The Office of the Public Access Counselor is an executive
branch agency although the legislature has given this Office the jurisdiction to address “any state statute or rule
governing access to…public records.” See Ind. Code § 514-4-3(3). The judiciary is subject to the Access to Public
Records Act pursuant to Ind. Code § 5-14-3-2(p)(1). That
said, this Office is careful to recognize the separation of
powers enumerated in the Indiana Constitution and recognizes the sovereignty of the judiciary which is mutually exclusive from the executive branch of State Government.

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 This Office regularly consults with the State Court Administration on matters involving the judiciary and works to
create a symbiotic relationship between all government
units, to the extent it is able. Nevertheless, this Office interprets the Access to Public Records Act to consider complaints filed against the judiciary to be justiciable and
therefore provides guidance on both the APRA and Administrative Rule 9.
To begin, it is important to note the difference between
confidential records and discretionary records as it pertains
to court records. When a statute or rule declares a specific
piece of information contained in a public record to be confidential, it is excluded from general public access. Ind.
Code § 5-14-3-4(a) gives several examples and subsection
(3) references other statutes or rules which may designate a
record to be confidential. Administrative Rule 9(G) expounds upon this and enumerates several categories of records that shall not be made available for public inspection.
This confidentiality extends beyond the life of the adjudication. There are procedural safeguards for the submission of
these kinds of information by the parties to ensure confidentiality and privacy.
Contrast confidentiality with the concept of discretionary
release. When a statute or rule gives an agency the discretion to withhold or release a document, it usually means
the subject matter rises to a level of sensitivity above and
beyond a normal public record, but stops short of being de
facto confidential.
As an illustration, take investigatory records of law enforcement agencies as an example. Those records are released at the discretion of law enforcement pursuant to Ind.

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 Code § 5-14-3-3(b)(1). They are not confidential per se, but
may contain information which, if released to the public,
could compromise an investigation or prosecution. Typically when a sensitive discretionary record is submitted to
the Court it becomes subject to public inspection. If a party
wants to exclude the record from public access, it must
move the court to do so. This process involves a hearing
which is regulated by Ind. Code § 5-14-3-5.5 and referenced in Administrative Rule 9(G)(4) as cases of extraordinary circumstance. The exclusion, or sealing, of the record is
temporary and should only exclude records by the least restrictive means.
If I am interpreting the complaint correctly, the core of the
issue is whether a Court has the discretion to sua sponte exercise discretion to withhold non-confidential records without following the procedures set forth in Ind. Code § 5-143-5.5 and Administrative Rule 9(G)(4). Administrative
Rule 9(G)(6)(c) only allows exclusion of court records from
access without notice and a hearing those specifically declared confidential. Therefore those which are merely discretionary cannot be withheld from public inspection without a
9(G)(4) hearing.
The Court cited approximately eleven categories of records
in its partial denial, but not all of those records are confidential by law. For example, the entirety of an autopsy report is not excluded from access. While video and photographs are, certain information in a report under Ind. Code
§ 36-2-14-18(a) must be created by a coroner and unequivocally made available (names, ages, addresses, cause and
manner of death, etc.). Additionally, witness, victim and juror names are not confidential (unless otherwise stated by

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 law, i.e. juveniles or sex crime victims), although certain
identifying information such as addresses would not be
subject to inspection. Finally, briefs submitted to a court
are not confidential work product or deliberative material
once they are submitted as a pleading and become part of
the record. The attorney waives such discretion when it is
submitted to the Court and presumably the opposing party.
I do not believe the Administrative Rules or subsection
(b)(4) et al. of the APRA were intended to transfer discretion of this kind to a Court. Make no mistake, a judge has
broad authority and discretion to run a courtroom in an orderly manner and administer justice in a way that balances
public access with any privacy interests. However, the Supreme Court is clear through the promulgation of its administrative rules (and their commentary) that the presumption is for disclosure. Therefore those records specifically declared confidential may be excluded without a petition or hearing, however, no other record may be excluded
by the Court unless requested by a party and notice and a
hearing has been provided. As to those records which have
not been explicitly declared confidential by statute or rule, I
encourage the Court to revisit its policies and procedures
to ensure appropriate access to its records and direct the
Clerk’s Office to respond to the Complainant accordingly.

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 CONCLUSION
Based on the foregoing, it is the Opinion of the Public Access Counselor the Elkhart Courts have not acted in compliance with the Access to Public Records Act by withholding certain records upon request.

Luke H. Britt
Public Access Counselor

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