By Steve Key
Unfortunately, persistence and a lawyer are required for a citizen to obtain records from a local government unit.
Ross Martinie Eiler of Bloomington requested copies of inmate grievance forms from the Monroe County sheriff’s department in the summer of 2010.
Eiler told then Indiana Public Access Counselor Andrew Kossack that his initial requests to Jail Commander Bill Wilson were ignored.
Eiler said he later submitted the request in person using the sheriff’s public information request form.
Eiler said when he reminded the sheriff’s office staff that a response is required within 24 hours of the request, the comment was met with chuckles 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 5-14-3-5(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 confidential; otherwise, the sheriff was in violation of the Access to Public Records Act.
His opinion also notes Eiler’s claim that his volunteer status at the jail was terminated the day after he filed his complaint 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 county attorney Jeff Cockerill reported his findings in May 2011.
Cockerill wrote: “My impression was that the sheriff’s concern was the labor requirement associated with the request.”
Cockerill talked to Eiler, who agreed to limit his request to 10 inmate grievances 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 attorney representing Kennedy. Byron, like Kossack, pointed out that the sheriff’s use of IC 5-14-3-5(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 purpose of APRA (and is highly illogical) for the public to be required to know the identity 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 Portability and Accountability Act.
The sheriff is not a medical provider, health care clearinghouse or health plan administrator, so the department records don’t fall under the scope of HIPAA.
Jail security was another gambit of the sheriff discounted 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 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 determination 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 unreasonable, 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.