Hoosier State Press Association - The Indiana Publisher
Issue link: https://www.ifoldsflip.com/i/112290
Page 4 February 28, 2013 Case questions records requests A Huntington resident has asked the Indiana Supreme Court to sort out what ���reasonable particularity��� means as a requirement for records requests under the Access to Public Records Act. The case stems from Seth Anderson���s request for all emails sent or received over a 4�� month period by the three Huntington County commissioners and the county���s human resources director. Anderson���s attorney, Justin Wall of Huntington, wrote in the petition to transfer the case to the state���s high court that officials initially denied Anderson���s request because it lacked ���reasonable particularity��� about the records being requested. Anderson decided to file a lawsuit seeking the records in Huntington County Superior Court before Special Judge Kenton Kiracofe. Kiracofe ruled against Mail Continued from Page 1 Saturday issue would deprive readers and eliminate Saturday advertising revenue. ���Newspaper personnel have been flooded with questions from family, friends and readers about what the paper would do (if Saturday mail stopped),��� Hutcheson said. ���Frankly, there is no good answer.��� The Postal Service has blamed its service reductions on the Internet. It is losing $25 million a day but much of that is because Congress makes it aggressively sock away money into the federal Treasury for future health care plans. It has lost nearly 40 percent of its FirstClass Mail in the past five years. One question is whether reducing service will stop the bleeding or accelerate it. In 2010, the Postal Service said it could save more than $3 billion with five-day delivery. Now it says the cost savings are closer to $2 billion. Its regulator, the Postal Regulatory Commission, disagreed with the cost savings in 2010 and found the potential savings much less. The commission questioned whether the Postal Service could handle delivery of all the held-back mail on Monday. In 2010, slowing delivery because of Monday holidays increased the Tuesday load by 64 percent, causing delays of that mail in the system throughout the rest of the week. Consistent Saturday closings could create the same waves of delay. The Postal Service estimated that up to 25 percent of First-Class Mail would be delayed in a five-day Anderson, but ironically the commissioners decided to comply with Anderson���s request before the ruling. Although he had the records, Anderson appealed the trial court ruling, but the appellate panel of Judges John Baker, Michael Barnes and Elaine Brown also ruled against him. Baker, who wrote the opinion, relied on a string of public access counselor opinions that refer to email as a method of communication, not a type of record. The opinions also require requests for emails to include both the sender and recipient to be considered reasonably particular. So despite the fact that the county was able to identify the 9,500 records Anderson requested and make them available after redacting confidential material, Baker ruled the request wasn���t particular enough under the law. Key Points By Steve Key While deferring to the public access counselor���s office, the case seems to run contrary to another Court of Appeals decision from last year, Jent v. Fort Wayne Police Department. In that case, inmate Michael Jent requested ���daily incident log reports��� from the Fort Wayne Police Department of specific crimes reported. Sgt. Andrew Bubb denied the request to the extent that the records were investigatory records. But he said the police agency would respond with daily log records if the department still had those records. delivery environment, and some of it could be delayed up to five days. In that mail are small business invoices, checks and credit card authorizations, another worry of Hutcheson���s and Judson���s. Small newspapers, like most small businesses, run on tight cash flows. Today���s checks from yesterday���s advertising and subscriptions pay for tomorrow���s printing. As they are affected, so will their small-business advertisers be affected, which could create a downward spiral in a barely-recovering economy in many parts of America. The bigger question is: what sort of Postal Service does America need? The Postal Service says the public supports dropping Saturday delivery. But whether the public is aware of the risks to the economy, particularly in small towns, is debatable. For most, the mail is taken for granted, even in a world where texts and emails have long since overtaken mail���s immediacy. Mail still supports more than $1 trillion in economic activity, according to a biennial study of the Envelope Manufacturers Association. And mailers pay for the Postal Service, not the general public. To some the Saturday football scores may seem trivial next to all of that. But if you���ve ever lived in a small town, you know that Saturday paper and its game news is anything but trivial. Tonda Rush is chief executive officer of the National Newspaper Association, a nonprofit trade association representing the owners, publishers and editors of community newspapers. Without publishing anything new, the Fayetteville Observer ad package created new, year-long revenue in just one week! Contact Advantage Newspaper Consultants today to learn more about creating NEW annual revenue with your existing core products. Fayetteville Observer's Platinum TV ad package exceeded revenue goal in less than a week! Ask us about our digital editions! 910-323-0349 | info@newspaperconsultants.com | www.newspaperconsultants.com Bubb also explained that the department didn���t have the software sophistication to search by the parameters outlined by Jent. The Allen Circuit Court ruled in favor of the police department when Jent filed suit under the Access to Public Records Act. A panel of Judges Edward Najam, Patricia Riley and Carr Darden heard Jent���s appeal. In addressing the question of reasonable particularity, Najam���s opinion noted that the appellate courts had not interpreted the language of the Access to Public Records Act. The opinion then drew upon the rules of discovery in trial proceedings, where courts have found that a requested item was reasonably particular if it enables the subpoenaed party to identify what is sought and enables the trial court to determine whether there has been sufficient com- pliance with the request. In Jent���s case, his added detail about which records he was requesting actually worked against him. ���Depending upon the storage medium, the details provided by the person making the request may or may not enable the agency to locate the records sought,��� Najam wrote. ���Indeed, here the FWPD was unable to fulfill the request using the search parameters Jent provided.��� While Jent lost his case, applying Najam���s interpretation to the Anderson case should have changed the result since Huntington County actually provided the records requested. Hopefully, the Indiana Supreme Court will take the Anderson case and clarify ���reasonable particularity.��� Steve Key is executive director and general counsel for HSPA. HSPA Hotline The following questions came from the Spencer Evening World, an Ohio resident, The Indianapolis Star and The News-Banner (Bluffton): Q The newspaper has an opportunity to publish a fullpage ad for a tobacco product, specifically ���snuff.��� Is there a legal reason why we should not do so? The company has indicated a disclaimer will be printed in the ad. Tobacco remains a legal product, so there isn���t a problem with the newspaper running an ad for a tobacco product. If the ad is from a manufacturer or wholesaler of cigarettes or other tobacco products, it should include a Surgeon General���s warning. If it doesn���t have a warning, ask the ad agency about the need for such a disclaimer. If they say the ad is OK as is, remember that the liability for not running the disclaimer would fall on the advertiser, not the newspaper, so you still could run it. In that case, I suggest you keep a copy of the email exchange so you have proof if asked that you were assured it wasn���t needed. However, it sounds like the agency already recognizes the need for the warning label. A Q Do the voterelected county commissioners have the right to attend hospital board executive sessions? I would assume that the answer is yes because the commissioners appoint the hospital board of trustees.�� The answer in Indiana is no. The hospital board is a separate board, and they would control who is allowed to sit in on an executive session. Politically, A the board might decide to allow it since telling the commissioners they can���t attend might lead to new appointments on the hospital board. Q The Indian�� apolis Office of Corporation Counsel has denied the newspaper access to individual legal settlements. It considers the requested information to be attorney work product, which is privileged. Additionally, the city says they are ���[r]ecords that are intra-agency or interagency advisory or deliberative material, including material developed by a private contractor under a contract with a public agency, that are expressions of opinion or are of a speculative nature, and that are communicated for the purpose of decision making��� [I.C. 5-14-3-4(b)(6).]. Is the city correct? The Knights�� town Banner v. Town of Knightstown case in 2008 made it clear that the final settlements in legal action involving government agencies are records that should be made available for inspection and copying. The (b)(6) exception only protects the opinion or speculation portions of documents created for decisionmaking purposes. It doesn���t include the settlement that���s been signed by both sides. Once you���ve made a formal request for settlement records and been denied, I suggest you file a complaint with the Indiana public access counselor. Make sure you reference the Knightstown Banner case. A Q A school board joint notice gave the start time for an open meeting and noted an executive session would follow. The notice included the open meeting���s agenda and at the bottom gave the following notice of executive session: ���An executive session will follow the public meeting to discuss, prior to any determination, an individual���s status as an employee as allowed by IC 5-14-1.5-6.��� Is that proper notification? Since the executive session follows the public meeting, combining the notices is fine. I have a couple of problems with the description of the session and code cited. IC 5-14-1.5-6 is incorrect and not complete. It should be IC 5-14-1.5-6.1(b)(6). If you stop at 6.1 on the citation that would include all the reasons for an executive session and tell the public nothing about whether the subject matter is proper for a closed-door session. The text given ��� ���to discuss, prior to any determination, an individual���s status as an employee ...��� ��� leaves out the important part of (b) (6): ���to receive information concerning the individual���s alleged misconduct; and to discuss, before a determination, the individual���s status as an employee.��� Their edited text would allow the school board to discuss a basketball coach with a losing record behind closed doors. Losing is not misconduct. The ���and��� in the statute means that to have an executive session under (b)(6) the school board is receiving information about the employee���s alleged misconduct and discussing the employee���s employment status. If alleged misconduct isn���t involved, then (b)(6) isn���t eligible as a basis for an executive session. A Contact Steve Key, HSPA executive director and general counsel, with media law questions at skey@ hspa.com or (317) 624-4427.