By Steve Key
Hoosier State Press Association
The Indiana Supreme Court declined to accept transfer of a case that could have led to a clear interpretation of what “reasonable particularity” means as a requirement for records requests under the Access to Public Records Act.
HSPA Foundation had supported an appeal in the case, Anderson v. Huntington County Board of Commissioners, with an amicus brief.
Jim Dimos of Frost Brown Todd, the attorney who wrote the “friend of the court” brief, said the vote was 3-2 against transfer, with Justices Loretta Rush and Stephen David voting to accept the case.
The Supreme Court action leaves two conflicting views on “reasonable particularity” in two Indiana Court of Appeals decision.
The Anderson decision contains the less desirable interpretation.
Indiana Court of Appeals Judge John Baker, who wrote the opinion, relies on a string of unfortunate Indiana public access counselor opinions that refer to email as a method of communication rather than a record. The opinions require requests for emails to include both the sender and recipient to be considered reasonably particular.
The fallacy in that logic is illustrated by the facts of the case.
Huntington resident Seth Anderson’s request for all emails sent or received over a 4½ month period by the three Huntington County commissioners and the county’s human resources director was initially denied for lack of “reasonable particularity.”
But the commissioners later decided to comply with the request and produced 9,500 emails prior to the trial court hearing on the denial.
Even though he had the records, the trial court ruled against Anderson in his Access to Public Records Act case. The appellate panel of Judges Baker, Michael Barnes and Elaine Brown also ruled against him.
The ruling, based on public access counselor views, runs contrary to logic.
If the request was not specific enough, how did the commissioners satisfy the request with several thousand records?
My hope was the state Supreme Court would have adopted the opinion from a different Court of Appeals panel that ruled last year in Jent v. Fort Wayne Police Department.
In that case, inmate Michael Jent requested daily incident log reports from the Fort Wayne police department of specific crimes. The request was denied because the police department software couldn’t search the specific parameters for the crimes Jent sought.
The Allen Circuit Court ruled in favor of the police department when Jent filed suit under the Access to Public Records Act. Judges Edward Najam, Patricia Riley and Carr Darden heard Jent’s appeal.
He lost the appeal, but Najam’s opinion noted that the appellate courts had not interpreted the Access to Public Records Act language.
His opinion then drew upon the rules of discovery in trial proceedings where the courts have found that a requested item was reasonably particular if it enables the subpoenaed party to identify what is sought and enables the trial court to determine whether there has been sufficient compliance with the request.
Najam’s opinion – applied to the Anderson facts – would have made Anderson the winner in his case. The commissioners could identify the emails sought, making the request reasonably particular.
With judges and attorneys already familiar with the standard based on their experiences with trial discovery, Najam’s opinion makes it easier for attorneys to advise public officials on the responsibility of records requests.
Najam’s opinion also erases the public access counselor opinions that refer to emails as a method of communications, not a type of record.
With the Indiana Supreme Court passing on the opportunity to clarify the question, we now have to hope that current Public Access Counselor Joe Hoage will look at both cases and be bold enough to follow Najam’s lead, not the wayward string of access counselor opinions endorsed by Baker.
Steve Key is executive director and general counsel for HSPA.