The Indiana Publisher

Prosecutors clarify stance on body camera video release T he Indiana Prosecuting Attorneys Council clarified its stance on whether law enforcement agen- cies should release police body camera video, but the practical impact of the change may be minimal, according to Steve Key, executive director and general counsel for the Hoosier State Press Association. Dave Powell, executive direc- tor of the IPAC, told Key last week that the organization's advice to prosecutors will be to examine each request on a case-by-case basis. From a practical standpoint though, Powell said prosecutors will still have to take into account the danger of being disciplined under the state Supreme Court's Rules of Professional Conduct (specifically Rules 3.6 and 3.8). If the video reflects poorly on a criminal defendant, the ques- tion for a prosecutor is: Will the release "have a substantial likelihood of materially preju- dicing" the defendant's ability to have a fair trial. Key said to be safe from a disciplinary proceeding, he expects prosecutors will advise police agencies to hold onto the video until either the investiga- tion is complete and no charges are to be filed, or until after the trial if charges are filed. Powell and Key agree that it's unlikely that any prosecu- tor will volunteer to be a test case on whether allowing police to release the video under an Access to Public Records Act request crosses the line as a violation of the conduct rules. Key said resolution to the conflict between a legislative intent to make the body camera videos more available and judi- cial concern for a fair trial may fall upon the Supreme Court. A separation of powers issue could arise if the legislature attempts to dictate a resolution that the justices believe inter- feres with the Court's ability to control judicial process. An advisory opinion from the Disciplinary Commission or Supreme Court could bring clarity, but the Commission doesn't have the authority to take such an action. It can only speak through a disci- plinary action. Meanwhile, the Supreme Court relies on "model" rules and would be reluctant to initiate any change to the Court's current Rules of Professional Conduct. Key said the stalemate between legislative intent and judicial concern for a fair trial will create See Body Camera, Page 3 Courts: How will your beat change to reflect Indiana's new courts? Page 8 Democracy: Sage words of advice from Congressman Lee Hamilton. Page 4 Hey, can they do that? Steve Key an- swers your legal questions. Page 5 Digital Tools: How to use digital tools to enhance journalism. Page 6 INSIDE Publisher The Indiana Volume 81, Issue 9 • September 8, 2016 Published on second Thursday monthly HSPA asks to file amicus brief in access case T he Hoosier State Press Association Foundation is asking permission to file an amicus brief in a case that could impact public access to accident reports in Indiana. The case filed in the federal Northern District of Indiana alleges that Appriss, the company that contracts with the Indiana State Police to collect accident reports from all law enforce- ment agencies and create the database to allow analysis of those report, is violating the federal Driver's Privacy Protection Act (DPPA). In Whitaker v. Appriss, the plaintiffs say Appriss' sharing of the data violates the DPPA because the identifying information on the acci- dent reports was collected by police officers from driver's licenses. In addition to the database's use for highway safety planning, Appriss is allowed to sell the data to third parties. That can include law firms who use the accident reports to contact potential clients. Reporters routinely seek access to the accident reports to create stories – either on individual incidents or to shed a light on a particular issue, such as the need for warning lights at a railroad crossing. HSPA executive director and general counsel Steve Key said, "the Foundation decided to get involved because a similar case in Wisconsin resulted in police departments redacting identi- fying information from accident reports until the lawsuit was resolved." The Indiana Broadcasters Association has joined the request for amicus status with the HSPA Foundation. Involvement at the trial court level, rather than waiting for the case to go before an appel- late court is a deviation from normal Foundation policy. Key said, "the reason is that a decision before the District Court would have statewide implications."d Similar cases have been filed in Wisconsin, Illinois and North Carolina. In other states, the named defendants were law firms that pur- chased accident report information for marketing purposes. Indiana is the first example where a DPPA violation claim has been made against a ven- dor that processes accident reports for a state agency. "It's illogical that the DPPA would force police officers to ask accident victims to identify them- selves verbally rather than use the driver's licenses to fill out the fields in an accident report to avoid a violation of the federal law," said Key. Dan Byron of Bingham Greenebaum Doll in Indianapolis prepared the request to file an amicus brief jointly for the Foundation and Indiana Broadcasters Association. Because Indiana law requires public access to accident reports, Key hopes the court will rule that the DPPA is similar to the Health Insurance Portability and Accountability Act (HIPAA) where courts found state law requiring disclosure trumps federal language calling for confidentiality. See Civic Education, Page 7 T he Indiana Bar Foundation and Hoosier State Press Association will launch a civic education project this month, "A Democracy's Primer," to assist Hoosiers in understanding how government works. Judges, lawyers and educators will write articles that Indiana newspapers may publish, most likely as op-ed piec- es. Two current state Supreme Court justices are commit- ted to contribute, along with former Chief Justice Randall Shepard. "A democracy works best when citizens understand how the system operates and how they can impact decisions," said Nancy Grossman, president of the HSPA Foundation and publisher of both the Salem Leader and Salem Democrat newspapers. "Newspaper readers are generally the thought leaders in a community, so we're happy to help improve the level of civic engagement in the state. "Our entire community thrives when citizens become more informed and engaged," said Kenneth J. Allen, A Valparaiso attorney who is president of the Indiana Bar Foundation. "I hope this series encourages more Hoosiers, from small towns to urban centers, to become more civically involved. Not only will this benefit our state and local communities, but greater civic involvement will enrich the lives of all who participate – it's a genuinely uplifting experience." There will be a trio of articles available prior to the November election with the planned subject matter: The Power of the Ballot Box – the importance of the vote with some historical examples of how one's vote can make a difference. Sidebars will indicate how to register or how to obtain an absentee ballot. Why the Founding Fathers Created the Electoral College? – An explanation on why this system was installed rather than just a popular vote. Spoiler Alert – it was part of the compromise to protect small states from rule by the larger population states. How did we end up with a two-party system? – George Washington hated political parties, but they aren't going away. Why do we have primarily a two-party system when so many other countries have multiple parties requir- ing coalitions to elect a prime minister? Civic education project launched 4th graders using "So You Think You Know Indiana" bicentennial Newspa- per in Education Program. Photo Credit: Mark Miller, Bluffton News Banner

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