The Indiana Publisher

Page 8 May 8, 2014 W hat a difference a word can make. In this case the word is "compiled." In two recent situations, "compiled" has allowed gov- ernment officials to keep records secret that otherwise would be available to the pub- lic for inspection and copying. I'm talking about the inves- tigatory records definition under the Access to Public Records Act at IC 5-14-3- 2(h). "Investigatory record" means information compiled in the course of investigating a crime. The legislature intended the law to protect the integ- rity of law enforcement inves- tigations. Opening up the investigation records to those targeted by the probe would make no sense. Allowing reporters to pub- lish details that would hinder the progress of the investiga- tion would be counter-produc- tive. I have no qualms about the need for the investigato- ry-record exception. The problem is that some officials are using the word "compiled" to make records that were available to the public on Monday secret docu- ments on Tuesday. There's an ongoing dispute between Purdue University and student-run newspaper The Exponent over the treat- ment of a photographer by police and the three-hour con- fiscation of his camera shortly after a murder in a campus building. The version of events told by the photographer and police differ. But the confron- tation occurred in a hallway with surveillance cameras. Exponent Publisher Pat Kuhnle requested a look at the footage. Purdue denied the request based on the "investigatory records" excep- tion. No one claims the police- photographer incident has any relevance to the murder investigation, but the camera footage has been included in the police department's col- lection of materials following the murder. So Purdue chooses to keep a record secret that has noth- ing to do with a murder but could prove who is telling the truth in the police-photogra- pher dust-up – all because it was collected during the investigation. If not for the basement murder investigation, the second-floor hallway video would be available for inspec- tion and copying. Remember that the excep- tion is discretionary, so Purdue could choose to make the footage available. Meanwhile, Editor Bob Zaltsberg at The Herald- Times (Bloomington) requested copies of public records concerning a former city employee and outside companies involved with a city works project, including change orders on the project. Several law enforcement agencies are investigating the contractors and ex-public employee. Zaltsberg's request was denied by the city based on the investigatory records exception. So even though those change orders and other construction-project docu- ments would be available for copying by anyone up to the day they were collected by investigators, city officials are now denying access to the records. HSPA's stance has always been that the status of a record's accessibility is determined when it was cre- ated or received by a public agency. If it was disclosable before law enforcement took an interest, it should remain dis- closable even if it becomes a piece of evidence to a crime. Otherwise, you set the stage where officials can use the pretext of a police inves- tigation to hide information that could be damaging. Like police manhandling a photographer contrary to department policy, perhaps. Steve Key is executive director and general counsel for HSPA. Key Points By Steve Key Records exception worth investigating CALL US TODAY For a quote on your next printing job. FULL SERVICE PRINTING, BINDERY & MAILING Your Indiana printing company O n e f a m i l y - 1 4 0 y e a r s HNEprinting.com Commercial Web & Sheetfed Printing Personalized Customer Service Mailing & Fulfillment Resources // Quick Turnaround Two Central Indiana Production Facilities 812-342-1056 3330 W. International Ct, Columbus 317-462-5528 22 W. New Road, Greenfield bstone@hneprinting.com T he Indiana Supreme Court differenti- ated between threats against one's reputation and threats against one's safety in upholding the conviction of a southern Indiana man for intimidation against a judge. An amicus brief supported by the HSPA Foundation and argued before the five- justice panel by UCLA law professor Eugene Volokh made that point as well. So while Daniel Brewing- ton' conviction was pre- served, the Supreme Court made it clear that such a conviction could not stand if based solely on defamation of a public figure. There must be a legiti- mate threat against the safety of the plaintiff, in this case Dearborn County Judge James Humphreys. In Justice Loretta Rush's 35-page opinion, the unanimous court made it clear that the U.S. and Indiana constitutions offer "sweeping protections to speech about public offi- cials or issue of public or general concern, even if the speech is intemperate or caustic." But the intimidation crime will protect against "true threats," including those that are implied and intend to put victims in fear for their safety or that of their families. The state Supreme Court rejected the Court of Appeals opinion on the intimidation statute. The high court ruled that the jury received improper instructions that it could find a crime based simply on a threat of exposing someone to hatred, con- tempt, disgrace or ridicule through the expression of opinions. Volokh's take on the May 1 decision was that Brewington's conviction was upheld on the grounds that the conviction was an "invited error" by the trial lawyer, since Brewington's attorney didn't object to the faulty jury instructions and because of the attorney's lack of objection to the gen- eral verdict, apparently part of a conscious all or nothing strategy. Though Brewington lost his case, Volokh was satis- fied with the high court ruling. "On balance, then, I think we won – since our goal was to overturn the bad lower court decision and make clear that the intimidation statute couldn't constitu- tionally be used to pun- ish threats of exposure to disgrace (setting aside the special case of blackmail)," Volokh wrote in an email following the decision's release. Volokh's pro bono brief argued that the Court of Appeals decision could criminalize constitutionally protected speech that could impact the ability of jour- nalists, public advocates, politicians and ordinary citi- zens to criticize the actions of judges or other public officials. HSPA Foundation learned of the case from Steve Andrews, adjunct assis- tant professor at Indiana University, and James Brown, executive associate dean emeritus, IU School of Journalism at IUPUI. Justices agree with intimidation aspect of brief Court: Criticism isn't a crime Political advertising resources Increase sales to political advertising clients with HSPA's free customizable brochure, handout, PowerPoint document and more. Download materials at hspa.com/2014political

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