Hoosier State Press Association - The Indiana Publisher
Issue link: https://www.ifoldsflip.com/i/54155
Page 4 February 2, 2012 State reporters' shield law isn't bulletproof T wo bills filed in the 2012 General Assembly illustrate how the state reporters' shield law can be circumvented. Sen. Brent Waltz, R-Green- wood, introduced an unsuc- cessful bill that would have prevented police conducting a traffic stop from using a device that can download data from a motorist's cell phone. During testimony before the Senate Judiciary Committee about S.B. 196, Waltz pointed out that the device can quickly copy all contacts, email, photos, phone history, etc., stored on the cell phone. The practice would threat- en the civil liberty and pri- vacy of Hoosiers. From a journalistic stand- point, the ability to strip a cell phone of all information sets the stage for a police agency to target a reporter who has been writing stories critical of a law enforcement department. The police could make a traffic stop of the reporter, seize the cell phone and download the data in an attempt to identify a source or other information. Think a police department would not do such an unethi- cal thing? Think again. In 1999, a Delaware County deputy prosecutor convinced a judge to issue a subpoena for the phone records of The Star Press (Muncie). The records were used by the police to identify an offi- cer within the department who had spoken with the paper in criticism of a murder investigation. HSPA Hotline From the Pharos-Tribune (Logansport), The Herald-Times (Bloomington) and the Carroll County Comet (Delphi): Q We asked the city and police department for information about a police officer who was put on sick leave for a back injury. Shortly after that, he was disciplined by the assistant police chief, reportedly for using sick time to watch his brother, the mayor, give a state of the city address. We specifically asked for the following: • Any and all injury or insurance claims filed by the officer between certain dates • Any and all injury reports filed by the officer • Any and all disciplinary reports; any and all official complaints filed by a fellow employee or member of the public • A detailed report of any and all sick days, personal days or leaves of absence between certain dates. They denied our entire request based on Indiana Codes 5-14-3-4(a)(3) and (b) (8). How can we get the information we need? Some of the allows personnel files to be kept confidential [(b)(8)]. As to the (a)(3) rationale A for their denial, you need to follow up and ask them what federal law is requiring them to keep some of the documents confidential. Also follow up on the disciplinary side. If the discipline was either a suspension or demotion, the public has a right to inspect and copy records from items you asked for do fall under the provision that a personnel file that outline the discipline taken and go to the factual basis for the discipline. Another avenue to explore is with the local clerk- treasurer. Information might show up on the check register, insurance forms, etc., that could open the window on some of the information concerning his sick leave. Those documents in that office would not be part of the personnel file, so they might be available unless the clerk-treasurer can find another provision allowing or mandating confidentiality. Q A The Monroe County Sheriff's Office tells us that they do not have to provide mug shots outside of normal business hours of 8 a.m. to 4 p.m. Monday through Friday. I don't see anything in the Access to Public Records Act that says we can't get mug shots outside the hours of 8 to 4. The Access to Public Records Act says requests should be made during nor- mal business hours of a public agency. The unanswered question for police agencies is what their normal business hours are: Twenty-four hours a day since they are always on duty or only the hours of the office staff? Nothing prevents them from giving you documents, photos, etc., any time, but nothing requires them to give you mug shots or anything when they aren't open to the public. I'd suggest the newspaper sit down with the sheriff and talk about the problem to see if a shift commander or some- one can help with the photo requests during odd hours of the day or on weekends. Q A What is the code section that states county public notices must be published in a newspaper within its boundary? The local zoning board did not get a 10-day notice of a public hearing to us until after we published The Comet this week. Now they are publishing in two out-of-county newspa- pers to meet the 10-day notice requirement. I told them it would not meet the requirements nor would it stand up to a chal- lenge. What say you? There are two relevant code cita- tions for your situ- ation. IC 5-3-1-4 sets out the requirement that political subdivisions must place pub- lic notice advertisements in two newspapers published within their political boundar- ies. If there is only one newspa- per that qualifies, that news- paper is sufficient. IC 5-3-1-0.6 sets out that a newspaper's location, or place of publication, is where its original point of entry into the U.S. mail is (as listed on its periodicals mail permit). I believe you are the only newspaper located in Carroll County, so the law would require the zoning board to publish in The Comet. Publishing in out-of-county newspapers isn't going to meet the legal requirement. Contact Steve Key, HSPA executive director and gen- eral counsel, with media law questions at skey@hspa.com or (317) 624-4427. Like Hoosier State Press Association on Facebook. Follow HSPA on Twitter @OurRight2Know. H.B. 1217 would strengthen Key Points By Steve Key The telephone service provider didn't tell the news- paper about the records release. The Star Press found out when a reporter covered a merit board meeting where the source was fired for his actions and the phone records were presented as evidence of his violation of department rules. A second bill that could affect the shield law's intent was filed by Rep. Cindy Kir- chhofer, R-Beech Grove, on behalf of the Indiana State Police. the ability of law enforcement agencies to subpoena out-of- state providers of electronic communications tools such as Facebook, Twitter, website hosts and email providers. Provisions in the bill would allow the police to access the data without notifying those targeted. Jordan Stewart, legal coun- sel for the Indiana State Police, assures HSPA that the intent is to strengthen the police's ability to fight crime, not target the media. He indicated a willingness to look at some protections for the media, and Kirchhofer also said she would consider changes to the bill suggested by HSPA. The bill has been approved by the House Courts and Criminal Code Committee Access Continued from Page 1 Bill Wilson, editor of The Rochester Sentinel, reported Jan. 27 that Gov. Mitch Daniels indicated his sup- port for the legislation dur- ing an interview with the newspaper. "We're obviously pleased with the progress of the leg- islation at this point," said Steve Key, executive direc- tor and general counsel for HSPA. "Representative Mahan did an excellent job of shepherding the bill through the House." The support of the Indiana attorney general, Chamber of Commerce, AARP and others shows the effort is an issue for the public, not just the press, Key said. The Indiana Association of Cities and Towns and the Association of Indiana Counties have been the only entities to testify against the legislation. Co-authors of H.B. 1093 are Reps. Kathy Richardson, R-Noblesville; Ed Clere, R-New Albany, and Mara Candalaria Reardon, D-Hammond. Co-authors of S.B. 92 are Sens. Jean Leising, R-Oldenburg; Patricia Miller, R-Indian- apolis, Travis Holdman, R-Markle; and Frank Mrvan, D-Hammond. The four nay votes cast on the House floor were the first negative votes against the concept of civil fines for intentional violations of the Open Door Law and Access to Public Records Act since Gard began filing legislation on this issue. and awaits action on the House floor. Rep. Bruce Bor- ders, R-Jasonville, is a co- author of H.B. 1217. Meanwhile, Waltz's bill died in the Senate Judiciary Committee. Committee chairman Sen. Richard Bray, R-Martinsville, said he held the bill because he wants more studying of the issue. However, Bray said he recognized the civil-liberties issues raised by Waltz. Without any checks on the ability to secure phone records of reporters and edi- tors, journalists may have to resort to clandestine face-to- face meetings with sources that they want to protect from government officials. Steve Key is executive director and general counsel for HSPA. The four representatives who voted against H.B. 1093 were Reps. David Wolkins, R-Winona Lake; Rep. Pat Bauer, D-South Bend; Rep. Craig Fry, D-Mishawaka; and Tom Saunders, R-Lewisville. Wolkins spoke against the bill on the House floor, say- ing it would set a bad prece- dent to allow public officials to be fined. He also said the fines would be too small to serve as a deterrent. If the legislation passes, a judge could levy a fine of up to $100 for a first offense and up to $500 for a repeat offense. In addition to the civil fines provision, both bills would give citizens the opportunity to request email notification of meet- ings by a specific governing body of a public agency. The agency would have the option to post meeting notices on its website as an alternative to creating an email list for notification. A provision that would have allowed the Indiana public access counselor to review unredacted docu- ments to determine wheth- er the redaction was legal under the Access to Public Records Act was removed from both bills in their respective committees. This was in response to concerns raised by the office of the governor and repre- sentatives of Indiana and Purdue universities. "We believe this is still a good concept, but the gover- nor's office raised some valid points that we need more time to properly address," Key said. 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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