The choice of words in the past can come back to haunt us.
Case in point is last week’s Indiana Supreme Court ruling in a case brought by WTHR-TV (Indianapolis) against the Hamilton Southeastern Schools. The result rested on the interpretation of “factual basis” and “information” in Indiana’s Access to Public Records Act.
The opinion is good, but doesn’t quite reach what I believe was agreed upon in 2003 when the provision concerning personnel files of public employees was changed by the Indiana General Assembly.
The unanimous opinion penned by Justice Mark Massa does affirm that a government unit cannot satisfy the APRA requirement to make the “factual basis” for disciplinary action where the employee has been fired, demoted or suspended without pay known to the public with a vague reference to a policy violation.
While noting that APRA does not define “factual basis,” Justice Massa noted that Indiana’s criminal code also used factual basis – for example, a judge must be provided a factual basis before accepting a plea agreement.
The opinion states that Hamilton Southeastern Schools offered no details as to what teacher and football coach Rick Wimmer did to deserve a finding by the district that he violated policy.
“Here it is unclear which requirement Wimmer violated, let alone what he did to warrant discipline,” Massa’s opinion states. The case will be remanded back to the trial court where the school district will be asked to comply with the Supreme Court’s decision.
That’s the positive result, but I believe the Supreme Court erred in agreeing with the Appellate Court decision that government units do not have to make specific records tied to the disciplinary action available for inspection and copying, but that the unit can create a document outlining the facts.
The opinion differentiates between “information” and “documents.” Because the statute repeatedly discusses information to be made available, rather than public records, it concludes that under the personnel file exception in APRA “when an agency compiles the required information into a new document, it creates a public record. If it allows a requester to inspect and copy that record, it has satisfied its obligations. Agencies must only turn over public records that contain the required information.”
I contend this flies in the face of the statute’s purpose that “all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. … This (statute) shall be liberally construed to implement this policy and place the burden of proof for the nondisclosure of a public record on the public agency that would deny access to the record and not on the person seeking to inspect and copy the record.” [See IC 5-14-3-1.]
I wrote about the history behind the personnel file exception in my May 2021 “Key Points” column here.
The following scenario outlines the detrimental impact of the Supreme Court ruling:
A black man is shot by police and dies. The minority community is up in arms believing this is another example of the disparate treatment of blacks compared to whites by the police. The state/county/city decides to suspend the officer involved for 10 days while leaders in the black community call for termination of the officer.
The WTHR-TV v. Hamilton Southeastern Schools ruling will allow the state/county/city to create a document outlining its version of what happened – cherry picking details to best justify its level of discipline. It can do so because the court’s ruling states: “When an agency provides a factual basis for employee discipline, it does not have to provide every intricate detail about what caused it to discipline and employee, but it must provide some facts about the employee’s actions.”
Documents that would tend to support the minority community’s contention that the officers’ actions called for stronger discipline can be withheld.
Yes, the court’s opinion points out that agencies can turn over underlying documents in personnel files and makes the positive arguments for greater transparency, but those arguments can be ignored if it’s in the government unit’s perceived interest to whitewash an officer’s culpability in an attempt to discourage racial unrest.