Public Access to Audiotapes of Court Proceedings

When faced with a request by the public to inspect or copy a tape of a court proceeding, judges must balance the public's rights under Indiana's Access to Public Records Act (IC 5-14-3) and the Indiana Supreme Court prohibition on the broadcasting, recording or taking of photographs in the courtroom under Canon 2, Rule 2.17 of the Code of Judicial Conduct.

An example of this problem can arise when no probable cause affidavit is filed during a probable cause hearing. The only comprehensive record of the proceeding is the audiotape, which can become the subject of a records request by the media or an interested citizen.  The tape clearly is a public record as defined by the Access to Public Records Act (IC 5-14-3-2) and the statute gives the public the right to inspect and copy public records (IC 5-14-3-3) unless the subject matter of the record requires or allows the public agency to keep the record confidential (IC 5-14-3-4).

Canon 2, Rule 2.17 does not make the probable cause hearing or its records confidential, but is designed to prohibit the dissemination of audio, video or still photography of a proceeding in a trial court. A trial judge who would make a copy of the tape under an Access to Public Records Act request would expose the court to the possibility that the tape might be broadcast by a television station, radio station or Internet site of a newspaper.

How best for a judge to handle such a situation?  Since Canon 2, Rule 2.17 does not prohibit the dissemination of what transpired in open court, just the form of dissemination, a judge can allow the records requester to listen to the tape and make notes from the tape.  (Individual courts may need to address logistical issues as to when the tape would be available for such an inspection, particularly if the only recorder capable of playing the tape is located in the courtroom, which will be in use for other proceedings.)

If the records requester is not satisfied with making his/her own notes, he or she could ask for a transcript, but would have to pay the court reporter for preparation of the transcript.  The fees charged for court reporting services are set by local court rule, and range from $3 to $5 per page.  The charge may be less if the court reporter had already prepared a copy of the transcript and only a copy is requested.