Technicality hinders access to records

Key Steve
Steve Key

By Steve Key

An Indiana Court of Appeals decision opens the door for future government secrecy by software design.

The three-judge panel unanimously found that a request for information by a Pendleton Correctional Facility inmate lacked “reasonable particularity” so the Fort Wayne Police Department was justified in denying the request.

Michael Jent, serving a 238-year sentence, requested “daily incident report logs of crimes committed from Jan. 1, 2001, through Dec. 8, 2005, containing the crimes of abduction and sexual assault and/or attempted abduction and attempted sexual assault with the victims describing the perpetrator as a Hispanic male with a tattoo of a rose and green stem on the left arm or side and/or if the victim was taken to a[n] abandoned house and/or placed in a van during the commission of the crime.”

Fort Wayne associate city attorney Carol Taylor responded that the city would provide the daily logs but denied his request for specifics that the city said fell under the “investigatory records” exception.

That’s a correct response because the description of a suspect is not required to be included in the daily log.

Sgt. Andrew Bubb of the Fort Wayne Police Department followed up Taylor’s acknowledgement of Jent’s request with a letter.

Bubb’s letter said the daily logs exist as electronic data, and the data could not be screened electronically to produce a list with the parameters Jent requested.

Bubb then denied the request under the investigatory records provision of IC 5-14-3-4(b)(1).

Jent filed a complaint with Indiana Public Access Counselor Joe Hoage.

Hoage properly said the daily log information should be made available but that the other information could be kept confidential as investigatory records.

Jent then filed a lawsuit, but the trial court entered summary judgment in favor of Fort Wayne.

Jent appealed, and Court of Appeals Judges Edward Najam Jr., Patricia Riley and Carr Darden heard the case.

Writing the court’s opinion, Najam called the police department’s denial appropriate because “the software lacks the capacity to search and retrieve the records requested.”

That’s the end of the story for the judicial panel.

The judges didn’t acknowledge that Jent still has the right to inspect the daily log reports for crimes of abduction or sexual assault or attempts to commit those crimes.

If the database cannot pull those records, a city worker should review the logs and determine which records fall under the parameters.

Hoage and the state’s first public access counselor, Anne Mullin O’Connor, repeatedly have pointed out to public officials that if records requests aren’t clear, officials should help requesters clarify what records they want.

That fits the intent of the legislature that “[p]roviding persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information.”

The appellate opinion indicates that if a public employee can’t hit a print or sort button to find the records, then the request can be denied, even if a visual look at the records could identify them.

The opinion sets the stage for future mischief by public officials who want to hide information from the public.

Steve Key is executive director and general counsel for HSPA.