It can be unnerving during the course of litigation to turn over to your attorney and even opposing counsel personal information. In a family law case for example, discovery can consist of providing tax returns, bank statements, medical records, and even phone records.
Much of this information is personal to you, and would not even be shared with extended family or the closest of friends. However, now you are handing it over to your attorney and opposing counsel. The reasoning behind this is that your attorney cannot advocate what is best for you without all of the information. Even still, it can seem overwhelming to have so much information out of your possession.
So, what happens with your information after it is turned over? The first thing to be sure of is that your attorney has a duty of confidentiality. Your attorney is charged with keeping your information safe, and should keep your file appropriately to that end.
If information needs to be given to the court, however, there is a safeguard there to keep your information private as well. Indiana Administrative Rule 9 protects personal information and puts forth the process for information safekeeping.1
The text of Rule 9 itself explains the purpose of the rule, which is generally to allow the public access to records and the court to have access to all of the information it needs while not making your personal information public record for anyone and everyone to see. This allows the litigant to make the best case using the necessary information, without worry that this will be seen outside of the court.
The definition of what information is protected is also found in the text of Rule 9. For example, adoption records created after July 8, 1941 are confidential and excluded from public access. Records relating to drug tests are also confidential, as are records of juvenile proceedings.
Further, records of child abuse or information that relates to a protection from abuse or no contact order are confidential as well. And medical, mental health, and tax records are confidential, unless otherwise determined. There are exceptions, but as a general rule, the policy of Administrative Rule 9 is to keep personal information private and out of the realm of public access.
In order to make sure the information remains private, there are options to ensure confidentiality. The litigant or attorney can redact the information that is confidential such as Social Security Numbers or dates of birth. Also, the litigant or attorney can file on green paper.
The green paper filings go to the court like any other filings or documents, but are kept separately from the records that are open to the public. Essentially, they are part of the file, but still not accessible as that part of the file is not for public access.
As with so many things in life, access to information is a balance. There is certainly a need for people to be able to access public records, and our system is built on the premise that public records are available for review. However, when one’s personal and confidential information is being offered to the court, public access must be restricted.
So, discuss openly with your attorney about your case and what documentation is needed or has been requested. And, know that confidential information that falls under the umbrella of the Rule will remain private.
Ciyou & Dixon, P.C. practices law throughout the state of Indiana. This blog post was written by Bryan Ciyou, Esq. and Jessica Keyes.