The Indiana Publisher

St. Joseph County Council members withheld emails, texts from the public; then some changed course February 2022 Page 13 Editor's note: this story origi- nally ran Jan. 31, 2022. Christian Sheckler South Bend Tribune SOUTH BEND — Nearly all members of the St. Joseph County Council initially failed to turn over emails or text mes- sages in response to a South Bend Tribune request for communica- tions about the county's redistrict- ing process, despite guidance from the state's top records expert that such messages are public information. The Tribune filed a complaint this week with the Indiana public access counselor. It alleges that the county and individual council members violated the Indiana Access to Public Records Act by not disclosing the text messages and emails sent or received via per- sonal accounts. Late last week, a few council members changed course and released at least some of their mes- sages to The Tribune after being questioned about their initial failure to do so. The failure to release the mes- sages highlights how county officials have kept information about redistricting — the process of drawing new election maps — from the public. And it comes as Democrats and Republicans spend upward of $80,000 in taxpayer money on a partisan fight over the maps. Those maps are now held up in court, after the Democratic- controlled council filed a lawsuit seeking to block a plan by the all-GOP Board of Commissioners that could give Republicans an edge in county elections. A Tribune reporter filed a request in November that sought all emails and texts, both sent and received, by council members about redistricting, including messages sent on county- owned and "private" email accounts and devices. When the county provided a "final response" to the request Jan. 14, after weeks of delays, the records included screenshots of text messages on a device belonging to Democratic Councilman Corey Noland, but none from the other eight members. When it comes to emails, Councilman Robert "Bobby" Kruszynski, a Democrat, appears to have been the only member to turn over messages from his personal account at the time of the county's official response on Jan. 14, even though the messages he disclosed show other members also discussed redistricting using private email addresses. Other council members reached by The Tribune cited varying reasons for not releasing their messages, including their habit of quickly deleting texts or their impression that some mes- sages weren't relevant. Outgoing Councilman Mark Telloyan, a Republican, eventu- ally released several messages to The Tribune. He initially refused to turn over the messages when the council's attorney asked members to do so in response to the Tribune's request. Telloyan is a newly appointed St. Joseph Superior Court judge and will soon vacate his seat. "My argument would be there's been no court decision saying that your text messages on your private device are subject to" the state's Access to Public Records Act, Telloyan said, "even if they're discussing...I guess you could say public business." It's true that no Indiana court has directly ruled that elected officials' text messages are public records. But such messages clearly fall under the public-information law, said Indiana public access counselor Luke Britt, who is appointed by the governor to interpret and give opinions on the Access to Public Records Act. "Any messages pertaining to public business that are sent or received in the capacity of your official duties as a council person is public record," Britt said. "I have not encountered a reasonable argu- ment to the contrary." Communications about public business with a variety of people – including constituents, fellow public officials and representa- tives of special interests – could qualify, Britt said. Even without a court decision, Britt said, government officials throughout the state have largely accepted that texts and emails on private servers are subject to public- records law. At the same time, state lawmakers have shown no interest in exempting those messages from public disclosure, he said, which could be interpreted as agreement from the legislature. "Council people who thumb their nose at not just my office, but a reasonable interpretation of the law, is inviting liability," Britt said. "The response appears to be dismis- sive of good public policy and good governance." Separately from council mem- bers, The Tribune has a pending request for emails and messages from the three commissioners, who serve as the executive branch of county government. A Tribune reporter asked a county attorney for an update on that request last week but has not received a response. Lawsuit as the 'nuclear option' The Tribune reached out to all nine members of the council this past week about whether they had failed to disclose communications. Responses varied. Telloyan at first compared his stance with that of Chicago's Democratic mayor, Lori Lightfoot, who recently refused to turn over some of her text messages and backed down after the Illinois attor- ney general threatened to sue her. However, he also acknowledged it's easy to see how elected officials' texts are widely considered to be public records. "I'm going to be a judge, so do I have a higher standard to follow the spirit of the law?" Telloyan asked. "If personal emails are subject to APRA requests, you don't have to analogize too much to say that personal text messages are subject to APRA." Gov. Eric Holcomb appointed Telloyan last month to fill a vacancy on the St. Joseph Superior Court. Telloyan's last council meeting was this past week, and his first day as judge will be Feb. 14. Telloyan agreed to release his redistricting-related texts after being notified of The Tribune's intent to publish an article about the council's non-disclosure of records. Of all council members, Telloyan released the most text messages by far. Telloyan's texts show some of the behind-the-scenes maneuvering by Republicans, as well as discus- sions with a key Democrat on whether the fight could be resolved. The discussions included efforts to nudge Republican Commissioner Deb Fleming, a crucial swing vote, to sup- port the GOP maps proposed by Commissioner Andy Kostielney. On Nov. 5, four days before the commissioners' first public hearing and vote on the maps, Telloyan text- ed state Rep. Jake Teshka, R-South Bend. "Might want to encourage Deb to vote for the new maps," Telloyan wrote. "They're by far the best way to break the D's supermajority on the" council. To read the full story, visit https://bit.ly/36hrgpD. The failure to release the messages highlights how county officials have kept information about redistricting — t he process of drawing new election maps — from the public.

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