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Thursday, July 12, 2007

Ind. Courts - Followup on "Sealed documents in otherwise 'unsealed' cases" [Updated]

The ILB has posted a number of entries on "secret dockets" and "sealed dockets" in other states. Here is a list. This has appeared not to be an issue in Indiana.

However, on February 13th the ILB wrote that it was surprised to find, in checking the Supreme Court Clerk's docket in the case of the recently decided case of John Doe v. Town of Plainfield, Indiana, that there was no docket entry at all for the case.

Checking with the Clerk's Office, I was told by Kevin Smith that this was the result of an earlier policy (where entire unsealed cases which included any sealed documents were not listed in the docket) that had now been changed and that in the "in the future only [completely] sealed cases would receive the 'sealed' notation on our electronic docket."

I took this to mean that all future appeals would be docketed. Mr. Smith cautioned, however:

[T]he new way we handle things will be prospective, as we have no way of knowing what cases were previously handled under the "old" way before I changed our practice. However, if those "old" cases (meaning those designated as "sealed" before I made the policy change) are brought to our attention like you did with the Doe v. Plainfield case, we can then make the adjustment to that case at that time.
In this March 9th ILB entry, the following was included as a foornote:
The ILB ran across a similar situation in the Indiana Clerk of the Courts office last month, as set out in this Feb. 13th ILB entry [see above] headed "Sealed documents in otherwise 'unsealed' cases." For years, apparently, cases containing any sealed documents were not included in the electronic docket (although you could view the unsealed part of the file if you asked for it by name in the Clerk's office).

After consulting with Kevin S. Smith, Clerk of the Courts, I was assured that changes were already underway and that, in the future, cases would not be totally sealed (and thus excluded from the electronic docket) simply because their file included a sealed document.

I was told that any such cases improperly sealed in the past which were brought to the attention of the Clerk's office would be unsealed, but that this change in dealing with the files would be prospective only, "as we have no way of knowing what cases were previously handled under the 'old' way" before [we] changed our practice."

After further investigation, however, it was determined by Mr. Smith that IT could run a search to flag any "sealed" cases that might meet the criteria for unsealing, and that staff could then, per a note from Mr. Smith dated Feb. 16th, "cull through the results to make any 'sealed' designation changes for 'unsealed' cases we find. It may take a few weeks, since our IT request will have to be placed 'in the cue' with others ahead of ours and since the first priority of my office has to be keeping up with the daily case flow, but we'll get it done as soon as possible."

This ILB considers this to have been a very positive development. When the process is completed, the ILB hopes to obtain a list of the appellate cases the records of which may now for the first time be accessed via the Clerk of the Courts online electronic docket.

Given the preceding, the ILB was very surprised today when it attempted to check the docket in the recent case of Guardianship of Patrick Atkins; Brett Conrad v. Thomas Atkins and Jeanne Atkins, which was reported here on June 27th. A search using the docket number, 29D01-0506-GU-44 (lower court), and 29A02-0606-CV-471 (court of appeals) returns no results other than "No records found for this search." Efforts using the litigants names also returned no results.

Earlier this afternoon I contacted Mr. Smith by email, provided him with the above, and asked these questions:

I'm planning to post the entry copied below on the ILB this afternoon. I'd like to get your input first if I could, as to: (1) why Atkins does not appear in the docket, and (2) the results of the IT search your office was undertaking so that cases sealed in the past would be available. (To refresh your memory, this is detailed at the end of entry.)
Mr. Smith responded within a few minutes:
In response to your questions:

(1) Atkins was a sealed case, so it would not fall within the parameters of our previous discussion concerning "sealed documents in otherwise 'unsealed' cases."

(2) It is my understanding that the cases falling within the parameters of our previous discussion about "sealed documents in otherwise 'unsealed' cases" have been rectified by our IT staff such that they should now appear on the public on-line docket. If you or your readers find that not to be so with regard to any specific case, however, I'd appreciate knowing about it so I can look into the matter.

After reviewing the above, I sent the following additional questions earlier this afternoon:
Thanks for the quick response. Some followups:

1. My understanding was that entirely sealed cases would at least be listed in the docket, albeit with, at a minimum, information indicating only that the case had been sealed. Otherwise, there is no way for the public to know that the case is in the system.

2. I am confused by footnote #1 in Atkins, if it is a sealed case:
[1] On June 9, 2006, Brett filed a motion to permit identification of the parties by their initials. The motions panel directed the parties to use full names in their pleadings and reserved the ruling on Brett’s motion for the writing panel. Brett has offered no citation to authority or rule in support of his request to identify the parties herein by their initials and we see no compelling reason to grant this request. Consequently, the motion is denied.
3. Could you provide me with the"list of the appellate cases the records of which may now for the first time be accessed via the Clerk of the Courts online electronic docket" as I had earlier requested?
Readers may check back to this entry for any additional communications.

[Updated at 5:54 pm] Kevin Smith has graciously sent the following response to my follow-up questions.

Thank you for your follow up. Here's what I have in response:

(1) Your understanding is absolutely correct -- you should have been able to find out from the public on-line docket that an appeal in the Atkins matter had been filed and that the case had been sealed by court order. (I apologize for the confusion -- your reference to your earlier articles about sealed documents in otherwise "unsealed" cases threw me off a bit, since Atkins was not an "unsealed" case.) I do not know why Atkins is not appearing on the docket in a limited fashion like it should be, as it was my understanding that this issue had been put to rest last February. I have, however, contacted our Director of IT to find out why, and he has assured me he will look into it. Hopefully, he finds it to be a glitch with Atkins only and not a systemic problem. I appreciate your bringing this issue to my attention so I can work to get it corrected.

(2) I'm not sure I comprehend the source of your confusion. The Court of Appeals opinion's footnote deals with whether the parties' names would or would not be listed by initials, not with the fact that the case had been ordered sealed by the motions panel a year earlier. [ILB - My thought, perhaps misguided, was why would they need to do this if the case was sealed?]

(3) There is no such list to provide to you from our previous exercise, and I don't believe we have the ability to generate one now. Rather, it is my understanding that we have the ability to run a search only for cases currently designated as "sealed" on our docket, but not for cases that formerly were designated "sealed" but are no longer. We are, however, doing an internal audit of all cases in our electronic docket that continue to bear the "sealed" designation, to ensure that only those that should bear that designation do so.

Posted by Marcia Oddi on July 12, 2007 03:52 PM
Posted to Indiana Courts