Records exemption shouldn’t be abused


By Steve Key

Police agencies tend to stretch the “investigatory records” exception in the Access to Public Records Act beyond its legislative intent – to the detriment of good public accountability.

A case in point:

Marion County Sheriff John Layton recently fired Deputy David Carrico. Layton said Carrico assaulted inmate Harry Hooks, who was handcuffed, in the outer bay area of the Marion County Arrestee Processing Center receiving room.

Layton told the media that Carrico filed a report that falsely described what happened when Hooks sustained facial injuries. The sheriff also has asked the FBI to look into possible civil rights violations by Carrico.

Layton’s determination was based on video that captured the incident.

The outer bay is equipped with a video surveillance camera that operates continually. The Indianapolis Star requested to view the video, but Layton denied the request, calling the footage an investigatory record.

But under Indiana’s Access to Public Records Act, a public record that becomes part of a criminal investigation isn’t necessarily an “investigatory record” that can be shielded from inspection and copying.

The video no doubt will be evidence in any criminal prosecution of Carrico.

But the definition of an “investigatory record” is information “compiled in the course of the investigation of a crime.”

There was no investigation occurring when the 24/7 video camera was recording whatever transpired in front of its lens in that bay area where police unload those who have been arrested, so the tape should not be considered an investigatory record.

When a public agency creates a record, its status under the Access to Public Records Act is also created.

The presumption is it’s a record that the public has a right to inspect and copy.

The burden lies with the public agency to find a statutory basis that existed when the record was created or received by the agency that either mandates or gives the agency the discretion to declare that record confidential.

When the video recorded Carrico slamming Hooks to the ground, according to Layton’s account, there wasn’t any statutory exclusion prescribing or allowing secrecy.

This legislative-limited definition of investigatory records is intentional.

In the Marion County incident, residents fortunately have a sheriff who was repulsed by what occurred. He acted immediately to fire Carrico and initiate a criminal investigation.

But what if Marion County had a sheriff who was more concerned about how disclosure of the reported assault might impact a re-election bid or who believed Carrico’s account and didn’t see a need to verify through a viewing of the video or was insulated from the event by a departmental culture that protects its own?

Public access to the mindlessly-operated video might be the only way the incident would have come to light. That’s the only way to verify a story told by an inmate but discounted by public officials.

Release of the video is the right thing to do. It won’t hinder the ability of the FBI to interview witnesses or for Carrico to receive a fair trial.

It will recognize the fact that government officials serve the public, which has the right to know what public officials and employees are doing with the authority granted them by the public in a democracy.

Steve Key is executive director and general counsel for HSPA.