Probation departments frequently receive subpoenas for records from probation cases. These subpoenas typically seek documents related to a current or former probationer, in both civil and criminal cases. Probation records are deemed confidential by Indiana Probation Standard 1.4 and Administrative Rule 9(G). As a result, probation officers must know how to respond when they receive a subpoena duces tecum.
Most importantly, the probation department should not ignore the subpoena. Under the Indiana Rules of Trial Procedure, “failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued….” Trial Rule 45(F). A written response to the subpoena must be submitted to the party seeking the records within 30 days under Trial Rule 34(C). The probation department has three options in responding to the subpoena: submit copies of the requested records, send a letter that objects to the request or proposes different terms, or file a motion to quash the subpoena. According to Trial Rule 45 (B), a party who is served a subpoena for the production of records may make a motion to quash or modify the subpoena if it is unreasonable or oppressive. The supervising judge, the chief probation officer and/or the county attorney (or a private attorney) can assist the probation department with its response to a subpoena.
When deciding whether probation records can be released in response to a subpoena, probation personnel should refer to Probation Standard 1.4 on “Release of Information” and discuss the request for records with the chief probation officer and supervising judge. Standard 1.4 states: “Information deemed confidential by statute shall only be release as allowed by the applicable statute. All other information in probation files shall be deemed confidential and shall not be released without the permission of the judge.” The commentary to Standard 1.4 states that “it is important that policies exist within the department to specify what information can be provided, who shall provide the information, and how it should be provided….” The information requested in the subpoena should be scrutinized in light of Standard 1.4 and department policy to determine the appropriate response to the subpoena.
When deciding whether alcohol and drug program/drug court records contained in probation records can be released in response to a subpoena, probation personnel should refer to 42 CFR Parts 2.61, 2.64, & 2.65 and discuss the request with the chief probation officer and supervising judge. Under 42 CFR 2.61, a response to a subpoena is not permitted unless the subpoena is accompanied with either a consent form signed by the client authorizing the release to the party producing the subpoena, or an authorizing court order complying with 42 CFR Part 2.64 (civil matters) or 2.65 (criminal matters). If the subpoena is not produced with the appropriate consent or court order, the probation department should respond to the subpoena with a letter explaining the requirements of 42 CFR Part 2, being careful to not confirm or deny whether such records exist. (sample letters: http://www.in.gov/judiciary/cadp/files/cadp-response-subpoena-criminal.pdf and http://www.in.gov/judiciary/cadp/files/cadp-response-subpoena-civil.pdf).
Contact the Indiana Judicial Center at 317-232-1313 with questions regarding subpoenas.