By Steve Key
Hoosier State Press Association
A dispute between Purdue University and school newspaper The Exponent highlights an aspect of the Access to Public Records Act that might need a judicial decision or legislative action to clarify.
The question is whether the public still has a right to inspect and copy public records after law enforcement considers the records evidence in a criminal investigation.
The answer lies with the state’s legislative intent of the term “investigatory record,” defined as “information compiled in the course of the investigation of a crime” at IC 5-14-3-2(h). Police can keep investigatory records confidential if they choose.
The Exponent wants Purdue to release surveillance video of officers confronting a photographer following a fatal shooting on campus in January. The newspaper says the footage would support the photojournalist’s account that he was harassed and manhandled.
Purdue police so far have refused to release surveillance video from the building, citing the investigatory records exemption.
HSPA contends that the status of normally disclosable records shouldn’t change just because police say they could be used as evidence. What was available to view and copy on Monday should still be available on Tuesday.
The Times (Munster) successfully made this argument to the Lake County Prosecutor’s Office a few years ago.
Political candidates’ financial disclosures – public records required of candidates to allow constituents to see who supports campaigns – were swept up in a corruption investigation, but the prosecutor agreed to make copies of the records available for The Times.
Unfortunately, Indiana public access counselors haven’t always agreed with HSPA on this matter.
More than one access counselor has said that “information compiled in the course of the investigation of a crime,” as defined in IC 5-14-3-2(h), means any information collected by law enforcement, whether it’s a record created by the police, collected from a private party or gathered from a public agency.
No one has yet presented Indiana appellate courts with a case to weigh in on the statute.
The Purdue dispute concerns a confrontation between university police and Exponent photo editor Michael Takeda inside the school’s Electrical Engineering Building on Jan. 21. Police were securing the building following the fatal stabbing and shooting of a student in the basement of the building.
Takeda entered the second floor of the building through an unsecured door after the shooting and was stopped by police while leaving.
Police say they acted in accordance with law enforcement policy. Takeda says officers pushed him to the ground and cursed at him.
Not in dispute is that officers detained Takeda at a police station for two hours and confiscated his cameras and phone for an additional hour.
It’s not known whether they viewed Takeda’s photos.
Takeda said in hindsight that entering the building soon after the killing was a mistake, but Exponent publisher and general manager Pat Kuhnle said that doesn’t excuse confiscation of his equipment. That could violate the federal Privacy Protection Act – passed to protect journalists from law enforcement seizure of notes, photos, videos, etc. – and The Exponent is considering filing a complaint.
A Purdue police internal investigation found the officers acted appropriately.
When The Exponent requested footage from security cameras that likely would have captured the confrontation, Purdue said officers apprehended Takeda on the first floor, where no cameras are stationed.
Takeda maintains he was taken into custody on the second floor, which has several cameras.
Later Purdue denied access to all building video under the investigatory records exception, even though no one claims Takeda’s detention has any impact on the prosecution of the murder suspect.
Even if the footage falls under the investigatory records exception, Purdue can make it available for inspection and copying. The exception doesn’t mandate secrecy; rather it allows discretion for it.
I can think of only one logical reason for Purdue guarding this video so tightly: The footage doesn’t support the internal investigation.
Steve Key is executive director and general counsel for HSPA.