Hoosier State Press Association - The Indiana Publisher
Issue link: https://www.ifoldsflip.com/i/134992
Page 4 June 6, 2013 Court inaction leaves questions T he Indiana Supreme Court declined to accept transfer of a case that could have led to a clear interpretation of what "reasonable particularity" means as a requirement for records requests under the Access to Public Records Act. HSPA Foundation had supported an appeal in the case, Anderson v. Huntington County Board of Commissioners, with an amicus brief. Jim Dimos of Frost Brown Todd, the attorney who wrote the "friend of the court" brief, said the vote was 3-2 against transfer, with Justices Lor ett Rush and Stephen David a voting to accept the case. The Supreme Court action leaves two conflicting views on "reasonable particularity" in two Indiana Court of Appeals decision. The Anderson decision contains the less desirable interpretation. Indiana Court of Appeals Judge John Baker, who wrote Are you on the list? HSPA requests Statements of Ownership from member newspapers to verify circulation for membership and contest eligibility. The papers listed below haven't submitted their Statements to HSPA as of June 5. Please fax them to (317) 624-4428. Alexandria Times-Tribune The Independent (Bicknell) The News-Banner (Bluffton) Boonville Standard (Boonville) The Jackson County Banner (Brownstown) Herald News (Cayuga) The Paper of Montgomery County (Crawfordsville) The Republican (Danville) The Call-Leader (Elwood) The Times (Frankfort) Springs Valley Herald (French Lick) Greenwood & Southside Challenger The Indianapolis Star The News & Tribune (Jeffersonville/New Albany) Journal & Courier (Lafayette) Dearborn County Register (Lawrenceburg) The Journal-Press (Aurora) The Lebanon Reporter Chronicle-Tribune (Marion) Post-Tribune (Merrillville) The Posey County News (New Harmony) The Times (Noblesville) The News-Journal (North Manchester) North Vernon Plain Dealer The North Vernon Sun The Ossian Journal The Paoli News-Republican Ohio County News (Rising Sun) Rising Sun Recorder The Shoals News The Tribune-News (South Whitley) Tribune-Star (Terre Haute) The Tipton County Tribune (Tipton) Wabash Plain Dealer The Regional News (LaCrosse) Westville Indicator the opinion, relies on a string of unfortunate Indiana public access counselor opinions that refer to email as a method of communication rather than a record. The opinions require requests for emails to include both the sender and recipient to be considered reasonably particular. The fallacy in that logic is illustrated by the facts of the case. Huntington resident Seth Anderson's request for all emails sent or received over a 4½ month period by the three Huntington County commissioners and the county's human resources director was initially denied for lack of "reasonable particularity." But the commissioners later decided to comply with the request and produced 9,500 emails prior to the trial court hearing on the denial. Even though he had the records, the trial court ruled against Anderson in his Access to Public Records Act case. The appellate panel Key Points By Steve Key of Judges Baker, Michael Barnes and Elaine Brown also ruled against him. The ruling, based on public access counselor views, runs contrary to logic. If the request was not specific enough, how did the commissioners satisfy the request with several thousand records? My hope was the state Supreme Court would have adopted the opinion from a different Court of Appeals panel that ruled last year in 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. The request was denied because the police department software couldn't search the specific parameters for the crimes Jent sought. The Allen Circuit Court ruled in favor of the police department when Jent filed suit under the Access to Public Records Act. Judges Edward Najam, Patricia Riley and Carr Darden heard Jent's appeal. He lost the appeal, but Najam's opinion noted that the appellate courts had not interpreted the Access to Public Records Act language. His opinion then drew upon the rules of discovery in trial proceedings where the 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 compliance with the request. Najam's opinion – applied to the Anderson facts – would have made Anderson the winner in his case. The com- HSPA Hotline The following questions came from the South Bend Tribune and Carroll County Comet (Delphi): Q Is a public school superintendent's job application an open record? The South Bend school board president (who happens to be an attorney) told me she is "running it by legal first since it's an HR document." She goes on to say, "I don't want to create liability for myself." I hope to see the actual application, particularly the part where the applicant reportedly checked "yes" when asked if she had a superintendent's license in Indiana. A There would be no liability for the school district because information in personnel files may be confidential at the discretion of a public agency [IC 5-14-3-4(b)]. The decision to make it confidential is an option, not a requirement. Personnel files can be kept confidential [IC 5-14-3-4(b)(8)], with some information required to be made available, including "name, compensation, job title, business address, business telephone number, job description, education and training background, previous work experience, or dates of first and last employment" with the public agency [IC 5-14-3-4(b) (8)(A)]. The school district may not have to provide you with the entire application, but if the personnel file contains records that include the above, they should provide that information, even if they redact other parts of the record. In my view, the public has a right to inspect or copy records of education and training background and previous work experience, and the school district has the discretion to open up part of the application or the entire personnel file. You can argue that the license is part of her training; so if she checked it "yes" that should be available to you. If she didn't check "yes" and the board gives you only documentation that doesn't include it – would the inference be she didn't check it? Q I requested a copy of an affidavit filed in support of a search warrant request from Carroll Circuit Court. My request was denied. When I asked on what basis it was denied, the court reporter told me that she has always been told that affidavits for search warrants are confidential. The judge said virtually the same thing. He said there was no court record as of yet because charges have not been filed on the three people who were arrested after the search. The judge did not seal the case, which has a miscellaneous case number until charges are filed, according to the county prosecutor. Is this affidavit confidential? A The Supreme Court's Administrative Rule 9 operates in the same fashion as the state's Access to Public Records Act. The presumption is that records are available for inspection and copying unless there's a legal basis for the record to be kept confidential. Search warrants, and I would argue the supporting documentation, are specifically listed as available for inspection and copying unless sealed by the judge – and then only until police file their return on the search warrant, which tells the court what they seized. If the judge didn't seal the warrant, the affidavit should be available for inspection and copying. The court could check with the state court administration for clarification on the question, or you could do that if the judge doesn't want to do so. Contact Steve Key, HSPA executive director and general counsel, with media law questions at skey@hspa.com or (317) 6244427. missioners could identify the emails sought, making the request reasonably particular. With judges and attorneys already familiar with the standard based on their experiences with trial discovery, Najam's opinion makes it easier for attorneys to advise public officials on the responsibility of records requests. Najam's opinion also erases the public access counselor opinions that refer to emails as a method of communications, not a type of record. With the Indiana Supreme Court passing on the opportunity to clarify the question, we now have to hope that current Public Access Counselor Joe Hoage will look at both cases and be bold enough to follow Najam's lead, not the wayward string of access counselor opinions endorsed by Baker. Steve Key is executive director and general counsel for HSPA. Shield Continued from Page 1 the issue. The Society of Professional Journalists provides talking points and a sample letter at http://www.spj.org/shieldlaw-sampleletter.asp. U.S. Rep. Marlin Stutzman, R-IN 3rd, has signed on as a co-sponsor for H.R. 1962. "Our great experiment in self-government hinges on freedom of speech and a free and independent press," Stutzman said. "This administration's recent actions have reminded Americans of our ceaseless duty to safeguard this precious liberty, which is why today I am proud to co-sponsor media shield legislation to make sure that journalists are protected from being forced to reveal their confidential news sources in federal proceedings. "Most importantly, this legislation will help ensure that the American people's right to know is free from government incursion," he said. "Congress should pass and President Obama should sign the Free Flow of Information Act without delay." HSPA hasn't seen any news releases from the rest of the Indiana delegation on this issue, but Sen. Dan Coats, R-Ind., may not be supportive based on a Washington Post op-ed he co-authored, "National security leaks must be plugged." In the column, Coats wrote, "The problem stems in part from the media's insatiable desire for realworld information that makes intelligence operations look like those of filmmakers' imaginations. That is understandable, but this hunger is fed by inexcusable contributions from current and former U.S. officials." 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! 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