Hoosier State Press Association - The Indiana Publisher
Issue link: https://www.ifoldsflip.com/i/45669
Page 4 October 27, 2011 Records request met with delays at every turn U nfortunately, persis tence and a lawyer are required for a citizen to obtain records from a local government unit. Ross Martinie Eiler of Bloomington requested cop ies of inmate grievance forms from the Monroe County sher iff's department in the sum mer of 2010. Eiler told then Indiana Pub lic Access Counselor Andrew Kossack that his initial requests to Jail Com mander Bill Wilson were ignored. Eiler said he later submit ted the request in person using the sheriff's public information request form. Eiler said when he remind ed the sheriff's office staff that a response is required within 24 hours of the request, the comment was met with chuck les and dismissal. He told the public access counselor that when he returned the next day, the sheriff's department response was, "It will probably take a very long time, if you are able to see them at all." There was no definitive denial or projected date of production of the requested documents, just the cryptic comment. Eiler received a written denial dated Aug. 13, 2010, which he said he received Aug. 21, 2010. Questioning whether the denial was proper under Indiana's Access to Public Records Act, Eiler asked the public access counselor's office for an opinion. Kossack issued one on Sept. 16, 2010. He pointed out that the statute the sheriff quoted as a basis for denying copies of the inmate grievances, IC 5143 5(b), was a part of the Access to Public Records Act that requires information about people who are incarcerated to be released. The public access counselor concluded that Sheriff James Kennedy should either release the records requested or cite a valid statute permitting the records to be kept confiden tial; otherwise, the sheriff was in violation of the Access to Public Records Act. His opinion also notes Eiler's claim that his volunteer sta tus at the jail was terminated the day after he filed his com plaint with Kossack's office. Eiler brought the problem before the Monroe County commissioners on Dec. 17, 2010. The commissioners asked the county's legal department to look into the issue, and HSPA Hotline These questions came from The Indianapolis Star, the North Vernon Sun and North Vernon Plain Dealer, The Herald (Jasper) and Community Media Group: Q A A Is this meeting notice adequate? Relevant portion: "The board is meet- ing pursuant to IC 5-14-1.5-6.1(b)(2)-(5) and is meeting only in executive ses- sion." I thought executive session notices had to state the pur- pose of the meeting. The code citations Q Q A give you the subject matters that allow a closed meeting. The notice complies with the Open Door Law. Do you have any guidance on cover- ing a grand jury? I know everything is secret, so what can we report? First off, you won't get any records concerning the grand jury until it's done. Then you can only get the report with its listing of indictments, if any. You can't attend the grand jury proceedings and shouldn't expect any com ments from the circuit court judge and prosecutor. If you have someone hang ing around outside the court room, the reporter can talk to any witnesses that enter or leave the grand jury proceed ings. A witness can talk about what they said but shouldn't comment on what anyone else in the room said. In other words, there's not a lot of information available from a grand jury. If you do have information about the grand jury proceed ings, you can print it if you're comfortable with it being true. If someone is leaking infor mation to you and you print it, worstcase scenario would be the prosecutor delivering a subpoena to you for records to determine who conducted the leak. Reporter's privilege laws prohibit a court from compel ling you to testify about a source of news. (It doesn't have to be a confidential source.) So whether the prosecutor would even make the attempt depends on how angry he or she might be. We have a retail client wish- ing to promote a sales event. They do not have a liquor license. Are they at odds with state law if they promote "Stop by for complimentary wine and cheese?" According to the Excise Police District that includes Dubois County, your client will need a temporary beer/wine per mit. The party in question can access the form on the website of the excise police. He or she would fill out the information, get it signed by the police chief or sheriff depending on whether the event is in the city limits or outside, provide a floor plan for the event showing placement of the bar, and submit it to the state excise police. Upon approval the client will get a certificate to post behind the bar. I was told the process takes two to three weeks once the information is submitted to the state. I recommend giving your client a headsup to make sure he or she is complying with the law before moving forward with the wine and cheese offer. Q A When deter- mining what the newspaper should charge for a public notice advertise- ment, do you count the two lines of the header? Yes, the header counts. Usually the header is composed of two lines that are a little larger point size than the body type of the public notice advertisement. Because it is a different point size, the line rate for those two lines will be different. You should note that the state Board of Accounts claim form for payment of public notices breaks out the head er, acknowledging that it will have a different line rate. Contact Steve Key, HSPA executive director and general counsel, with media law ques- tions at skey@hspa.com or (317) 624-4427. Key Points By Steve Key county attorney Jeff Cockerill reported his findings in May 2011. Cockerill wrote: "My im pres sion was that the sheriff's concern was the labor require ment associated with the request." Cockerill talked to Eiler, who agreed to limit his request to 10 inmate griev ances to make the records search less burdensome for the sheriff's office. "Later I followed up with the sheriff," Cockerill wrote. "He stated: 'His request was and is denied. He has received all the information required by the APRA.'" Agreement about the law between the public access counselor and the Monroe County legal department didn't sway Kennedy. But the denials didn't deter Eiler. He hired media law attorney Dan Byron of Bingham McHale to help him gain access to the records. On Sept. 28, 2011, Byron sent a letter to Howard Williams, a South Bend attor ney representing Kennedy. Byron, like Kossack, pointed out that the sheriff's use of IC 51435(b) was misguided. "The statute doesn't limit access but mandates access to certain information," Byron wrote. Byron also disputed the sheriff's contention that the request should name specific inmates. "It would defeat the pur pose of APRA (and is highly illogical) for the public to be required to know the iden tity of the person arrested or detained," Byron wrote. The letter also dismissed the sheriff's claim that the records were required to be kept confidential under the federal Health Insurance Por tability and Accountability Act. The sheriff is not a medical provider, health care clearing house or health plan admin istrator, so the department records don't fall under the scope of HIPAA. Jail security was another gambit of the sheriff discount ed by Bryon. The letter's conclusion: Turn over the records or face a civil lawsuit under the Access to Public Records Act. The sheriff's attorney Notice Continued from Page 1 notice questions including: • With a statemandated price cap, what can I charge for public notices? • Which public notices fall outside the stateset rate structure? • Why should I communi cate with the news depart ment about public notices? • When does a publication of a notice need notarization? Cost is $20 for one employ ee and $10 for each addi tional employee at the same newspaper. Award Continued from Page 1 or more of the following ways: • Made a significant impact on the newspaper industry in Indiana through service to HSPA in one or more of the following areas – committee work, board membership, lob bying efforts or legal action. • Performed outstanding service to the newspaper industry in general. • Demonstrated service in the local community that reflected positively on its newspaper. responded on Oct. 11, at least 14 months since Eiler's initial request. "Please be advised that I have spoken with the Monroe County sheriff. He is sending materials requested by Mr. Martinie Eiler to me. I will review the materials and then forward them on to you," the attorney wrote. The clock's still running, but it appears Eiler's determi nation may yet be rewarded. For more than a year to pass without the release of records as required by law to an Indiana citizen is unrea sonable, particularly in light of the agreement between the county's legal office and the public access counselor that the records should be made available. The sheriff apparently was prepared to ignore the law until Eiler made it clear he was going to pursue his right to the documents through the courts. The threat of a civil fine the sheriff would have to pay out of his own wallet, if found to have deliberately violated public access laws, might have prevented the ordeal for Eiler. Steve Key is executive director and general counsel for HSPA. The registration deadline is Monday, Nov. 7; payment may follow. Registration information was sent to mem ber newspapers. To download a form, visit hspa.com. Everyone should bring the questions they have about public notice ads, Key said. "Over time some news papers lose the person who knew everything about public notices, and that may lead to practices that are contrary to the law or cost revenue," he said. "This seminar will fill that information gap." For more information, call (317) 8034772 or email sgoldsby@hspa.com. Nominees must be: • A present or former employee of an HSPA member newspaper or affili ated with journalism through a university, college or news paper association; and • An exemplary profes sional who brings credit to the newspaper industry. Length of service is a major qualifying criterion but not exclusively so. Nomination guidelines: • Nominations may come from HSPAmember newspa per publishers, editors or other employees, including members of the board of directors. 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