Current through September 18, 2024
Authority: IC
8-1-1-3;
IC
8-1-2-47
Affected: IC 5-14-3; IC
8-1-1-8;
IC
8-1-2-29
Sec. 4.
(a) If a
party desires to file with or submit to the commission a writing, paper,
report, study, map, photograph, book, card, tape recording, or other material
that the party believes is confidential in accordance with IC
8-1-2-29
and IC 5-14-3, the party shall do the following:
(1) Apply for a finding by the commission, on
or as soon as practicable before the date (if any) the information is required
to be filed, that the information is confidential as follows:
(A) In docketed proceedings, an application
shall be done through a motion in accordance with section 12 of this
rule.
(B) In an instance where
confidential treatment is sought by the party and the material is not part of a
docketed proceeding, an application shall be done through a petition in
accordance with section 9 of this rule.
(C) This subsection applies if a filing party
wishes to submit confidential information provided and considered confidential
by another party (providing party), and the providing party wishes to submit
its own supporting motion for confidential treatment. In this circumstance, the
providing party must submit its supporting motion for confidential treatment
within five (5) business days after the filing party's submission, or
submission of the redacted filing, whichever occurs first. The providing
party's motion should indicate whether the other parties to the proceeding
object to preliminary confidential treatment of the information.
(2) If the motion is part of a
proceeding, the motion should, to the extent the filer can reasonably
determine, indicate whether parties to the proceeding object to preliminary
confidential treatment of the information.
(b) For motions filed under subsection
(a)(1)(A), the written application for a confidentiality finding must be served
on the parties of record. After five (5) days, or earlier if the parties have
indicated they shall not object, or as ordered by the presiding officers,
following an application by a party under this subsection, the commission may
take one (1) or more of the following actions:
(1) Find information to be confidential, in
whole or in part.
(2) Find
information not to be confidential, in whole or in part.
(3) Issue a protective order or docket entry
covering the information.
(4) Find
that information found not to be confidential should be filed in accordance
with this rule.
(c) For
petitions filed under subsection (a)(1)(B), the following applies:
(1) If no objections are filed within thirty
(30) days and the presiding officer does not otherwise determine a need for an
evidentiary hearing, the commission shall proceed to issue an order.
(2) If objections are filed within thirty
(30) days or the presiding officer determines a need for an evidentiary
hearing, the presiding officer shall convene a prehearing conference and
establish a procedural schedule.
(3) After review of objections and matters
raised in an evidentiary hearing, as applicable, the commission may take one
(1) or more of the following actions:
(A) Find
information to be confidential, in whole or in part.
(B) Find information not to be confidential,
in whole or in part.
(C) Issue a
protective order covering the information.
(D) Find that information found not to be
confidential should be filed in accordance with this rule.
(d) The application required by
subsection (a) shall be accompanied by the sworn statement or testimony of a
party setting forth sufficient facts that describes the following:
(1) The nature of the confidential
information.
(2) The reasons why
the information should be treated as confidential information under IC
8-1-2-29
and IC 5-14-3.
(3) The efforts the
party has made to maintain the confidentiality of the information.
(e) At the request of the
presiding officer or a party, an in camera inspection shall be conducted for
the purpose of hearing argument on confidentiality of information submitted
under this section. If an in camera inspection is conducted under this section,
the information for which confidential treatment is requested shall be made
available during the in camera inspection on a provisional basis for the
limited purpose of determining its confidentiality. An in camera inspection
conducted under this section may, at the discretion of the presiding officer,
be publicly noticed under IC
8-1-1-8.
(f) If, during the in camera inspection, the
presiding officer determines that the information in question is not
confidential or is only partially confidential, the commission shall maintain
the confidentiality of the information until:
(1) an appeal to the full commission has been
decided; or
(2) until the motion to
amend or withdraw the information has been finally ruled upon; whichever occurs
later.
(g) Information
filed with or submitted to the commission prior to a finding by the commission
that the information is confidential shall be available to the public under IC
8-1-2-29.
(h) Parties seeking protective orders to
prevent or limit discovery of trade secret or other confidential:
(1) research;
(2) development; or
(3) commercial; information shall make a
separate motion under Indiana Rules of Trial Procedure 26(C).
(i) After receiving a preliminary
determination that material is entitled to confidential treatment, the
following applies:
(1) Confidential documents
submitted shall comply with the following:
(A)
Include only the pages of the document that contain confidential
information.
(B) Be filed on green
paper when submitted in hard copy.
(C) Be conspicuously marked:
(i) "CONFIDENTIAL PER ACCESS TO COURT RECORDS
RULE 5"; or
(ii) "EXCLUDED FROM
PUBLIC ACCESS PER ACCESS TO COURT RECORDS RULE 5"; with the cause number
clearly designated.
(D)
Add any other markings and designations required by the court rules.
(E) Comply with the specific directives set
forth in the determination.
At the discretion of the presiding officers, large or
oversized filings may be filed on compact discs or in another manner.
(2) If confidential
documents are filed, a public access version must also be filed, as follows:
(A) Public access versions of the documents
filed shall be filed on white paper.
(B) Confidential records or parts of records
that are to be excluded from public access shall be omitted or redacted from
the public access version. The omission or redaction shall be indicated at the
place it occurs in the public access version.
(C) At the request of a party, the presiding
officer may initially elect not to require submission of a public access
version of a confidential document if such document is large or oversized and
filed on compact discs or in another manner.
(D) Regarding a public access version of a
confidential document that was initially not required under clause (C):
(i) The presiding officer may later elect to
require submission of a public access version.
(ii) The presiding officer shall require
submission if one (1) of the following occurs:
(AA) a party not permitted to access the
confidential information requests a public access version; or
(BB) a request is made under state or federal
public access laws and disclosure by the commission is required by
law.
