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. As a result, probation departments must know who to contact 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). 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 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. The probation department should contact the Office of Judicial Administration to request assistance from the Attorney General’s Office to respond to the subpoena.
When deciding whether probation records can be released in response to a subpoena, probation personnel should refer to Probation Standard 1.4 on “Confidentiality of Records” and discuss the request for records with the chief probation officer and supervising judge. Standard 1.4 states: “Information contained in probation files is confidential and may only be released in accordance with the Indiana Rules on Access to Court Records, state and federal statutes and rules, and policies adopted by the Judicial Conference of Indiana. The information requested in the subpoena should be scrutinized in light of Standard 1.4 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. See sample letters:
Sample Letter 1
Sample Letter 2
Contact the the Indiana Office of Judicial Administration at 317-232-2542 for assistance.