The Indiana Publisher

Page 4 January 2022 The choice of words in the past can come back to haunt us. Case in point is last week's Indiana Supreme Court ruling in a case brought by WTHR- TV (Indianapolis) against the Hamilton Southeastern Schools. The result rested on the inter- pretation of "factual basis" and "information" in Indiana's Access to Public Records Act. The opinion is good, but doesn't quite reach what I believe was agreed upon in 2003 when the pro- vision concerning personnel files of public employees was changed by the Indiana General Assembly. The unanimous opinion penned by Justice Mark Massa does affirm that a government unit cannot satisfy the APRA requirement to make the "factual basis" for disci- plinary action where the employee has been fired, demoted or sus- pended without pay known to the public with a vague reference to a policy violation. While noting that APRA does not define "factual basis," Justice Massa noted that Indiana's crimi- nal code also used factual basis – for example, a judge must be provided a factual basis before accepting a plea agreement. The opinion states that Hamilton Southeastern Schools offered no details as to what teacher and foot- ball coach Rick Wimmer did to deserve a finding by the district that he violated policy. "Here it is unclear which requirement Wimmer violated, let alone what he did to warrant discipline," Massa's opinion states. The case will be remand- ed back to the trial court where the school district will be asked to comply with the Supreme Court's decision. That's the positive result, but I believe the Supreme Court erred in agreeing with the Appellate Court decision that government units do not have to make specific records tied to the disciplinary action avail- able for inspection and copying, but that the unit can create a document outlining the facts. The opinion differentiates between "information" and "documents." Because the statute repeatedly discusses information to be made available, rather than public records, it concludes that under the personnel file excep- tion in APRA "when an agency compiles the required information into a new document, it creates a public record. If it allows a requester to inspect and copy that record, it has satisfied its obliga- tions. Agencies must only turn over public records that contain the required information." I contend this flies in the face of the statute's purpose that "all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who repre- sent them as public officials and employees. … This (statute) shall be liberally construed to imple- ment this policy and place the burden of proof for the nondisclo- sure of a public record on the pub- lic agency that would deny access to the record and not on the per- son seeking to inspect and copy the record." [See IC 5-14-3-1.] I wrote about the history behind the personnel file excep- tion in my May 2021 "Key Points" column at https://bit. ly/3nEtMvY. The following scenario out- lines the detrimental impact of the Supreme Court ruling: A black man is shot by police and dies. The minority commu- nity is up in arms believing this is another example of the disparate treatment of blacks compared to whites by the police. The state/ county/city decides to suspend the officer involved for 10 days while leaders in the black community call for termination of the officer. The WTHR-TV v. Hamilton Southeastern Schools ruling will allow the state/county/city to cre- ate a document outlining its ver- sion of what happened – cherry picking details to best justify its level of discipline. It can do so because the court's ruling states: "When an agency provides a fac- tual basis for employee discipline, it does not have to provide every intricate detail about what caused it to discipline and employee, but it must provide some facts about the employee's actions." Documents that would tend to support the minority commu- nity's contention that the officers' actions called for stronger disci- pline can be withheld. Yes, the court's opinion points out that agencies can turn over underlying documents in personnel files and makes the positive argu- ments for greater transparency, but those arguments can be ignored if it's in the government unit's perceived interest to whitewash an officer's culpability in an attempt to discourage racial unrest. Key Points Steve Key I contend this flies in the face of the stat- ute's purpose that "all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them ..." Ruling allows agencies to cherry pick employee discipline info

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