Records exception worth investigating


By Steve Key
Hoosier State Press Association

What a difference a word can make. In this case the word is “compiled.”

In two recent situations, “compiled” has allowed government officials to keep records secret that otherwise would be available to the public for inspection and copying.

I’m talking about the investigatory records definition under the Access to Public Records Act at IC 5-14-3-2(h). “Investigatory record” means information compiled in the course of investigating a crime.

The legislature intended the law to protect the integrity of law enforcement investigations. Opening up the investigation records to those targeted by the probe would make no sense.

Allowing reporters to publish details that would hinder the progress of the investigation would be counter-productive. I have no qualms about the need for the investigatory-record exception.

The problem is that some officials are using the word “compiled” to make records that were available to the public on Monday secret documents on Tuesday.

There’s an ongoing dispute between Purdue University and student-run newspaper The Exponent over the treatment of a photographer by police and the three-hour confiscation of his camera shortly after a murder in a campus building.

The version of events told by the photographer and police differ. But the confrontation occurred in a hallway with surveillance cameras.

Exponent Publisher Pat Kuhnle requested a look at the footage. Purdue denied the request based on the “investigatory records” exception.

No one claims the police-photographer incident has any relevance to the murder investigation, but the camera footage has been included in the police department’s collection of materials following the murder.

So Purdue chooses to keep a record secret that has nothing to do with a murder but could prove who is telling the truth in the police-photographer dust-up – all because it was collected during the investigation.

If not for the basement murder investigation, the second-floor hallway video would be available for inspection and copying.

Remember that the exception is discretionary, so Purdue could choose to make the footage available.

Meanwhile, Editor Bob Zaltsberg at The Herald-Times (Bloomington) requested copies of public records concerning a former city employee and outside companies involved with a city works project, including change orders on the project.

Several law enforcement agencies are investigating the contractors and ex-public employee.

Zaltsberg’s request was denied by the city based on the investigatory records exception.

So even though those change orders and other construction-project documents would be available for copying by anyone up to the day they were collected by investigators, city officials are now denying access to the records.

HSPA’s stance has always been that the status of a record’s accessibility is determined when it was created or received by a public agency.

If it was disclosable before law enforcement took an interest, it should remain disclosable even if it becomes a piece of evidence to a crime.

Otherwise, you set the stage where officials can use the pretext of a police investigation to hide information that could be damaging.

Like police manhandling a photographer contrary to department policy, perhaps.

Steve Key is executive director and general counsel for HSPA.