Key Points: A public employee would do nicely


By Steve Key

Newburgh town officials are upset over a $50,000 attorney bill and blame the Evansville Courier & Press.

They have no one to blame but themselves.

The Courier & Press requested seven months of emails between former town manager Lori Buehlman and Newburgh council members. They also requested emails between the five council members and the clerk-treasurer concerning a proposed Walmart Neighborhood Market and the Newburgh Plan Commission.

According to reporter Shannon Hall’s story in the Evansville newspaper, the paper made the request after Buehlman resigned abruptly in the summer and the town council reversed the plan commission’s rejection of the Walmart rezoning petition.

The council treated the records request as a legal matter and turned over the thousands of emails to its attorney, Chris Wischer. Last month, town officials said the review by the law form cost $50,000, with another invoice still to come.

Why the town turned a simple, while admittedly large, public records request over to its attorney is unfathomable.

The legislature clearly intends that providing public information “is an essential function of a representative government and an integral part of the routine duties of public officials and employees.” [See IC 5-14-3-1 of the Access to Public Records Act.]

And the statute establishes the presumption that government records should be disclosable to the public.

It also sets out the general subject matters that either require confidentiality or give an entity, such as the Newburgh town council, the discretion to withhold certain information if it chooses.

It isn’t rocket science.

And officials shouldn’t deem all records requests a legal matter.

I can understand that some of the emails may have raised a question as to whether they fell into a category that required confidentiality. Or perhaps the council might have felt some fell under the personnel file exception that allows for confidentiality. Then they could have sought the attorney’s review for those emails.

This would have reduced the number of emails requiring a legal opinion to a fraction of the total.

Instead the council asked the law firm to review roughly 17,000 emails.

This decision took the job from employees whose review would not have cost the town any additional money – unless they paid overtime to expedite the request – and handed it to an outside vendor that charges by the hour.

Between 300 and 400 hours were billed by Wischer’s firm, or about $3 per email.

Hall’s story doesn’t say whether Wischer advised the town to conduct an initial review to avoid unnecessary legal fees or just accepted the work.

Could the newspaper’s request have been drawn a bit tighter to avoid review of duplicate copies that were sent to each of the five council members? Yes.

But the main error was the council’s position that records requests are legal matters to be handled by the town attorney. An error the members don’t appear to recognize.

Hall reports that at the council’s Dec. 9 meeting, council member Leanna Hughes said, “Too bad the newspaper doesn’t tell people how much wonderful things project-wise we could have been doing with the town with that $50,000 than this crap.”

It was a waste, but not because the newspaper was doing its job in investigating the actions of the Newburgh council.

The council’s decision to have an outside attorney handle a public records request created the mess.

Steve Key is executive director and general counsel for the Hoosier State Press Association.