State Court of Appeals rules 911 tapes can be withheld

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For years there was an uneasy standoff concerning public access to E911 tapes.

The Hoosier State Press Association argued that the tapes should be available for public access as another point of information so that the public could hold emergency services and law enforcement accountable.

Law enforcement officials and organizations argued they should fall under Indiana’s Access to Public Records Act provision for “investigatory records,” which would give them the discretion to keep them confidential.

When a dispute over accessibility would pop up, sometimes a sheriff would back down and release the tape. Sometimes a media outlet would back down. Neither camp seemed willing to push for a judicial interpretation on the law because the answer might now be what they wanted.

We now have an answer from the Indiana Court of Appeals and it wasn’t what HSPA wanted.

The appellate court decision not only allows police agencies to hide ineptitude … but allows a mayor and police chief to conspire to hide public records that could show corruption …

Fox 59 television station, through a reporter Aishah Hasnie, filed a lawsuit against the Carroll County E911 dispatch center. The reporter was seeking access to calls reporting a house fire in Flora that occurred in November 2016. Four children died in the fire.

The Carroll County Sheriff and Carroll County Prosecutor asked the separately operated dispatch center to deny the request because the incident was still under investigation. The records request was made seven months after the blaze.

Indiana Public Access Counselor Luke Britt issued an opinion in the reporter’s favor, but the dispatch center still refused to provide tapes from multiple people calling in to report the fire. The television station through Hasnie filed a lawsuit in Marion County Superior Court. The trial court also ruled in Fox 59’s favor.

The case was appealed by Carroll County 911. Attorney General Curtis Hill filed an amicus brief on behalf of the state of Indiana and the Indiana Prosecuting Attorneys Council also filed an amicus brief. Both supporting the denial of access to the E911 tapes.

The Hoosier State Press Association Foundation joined in an amicus brief prepared by the Reporter’s Committee on Freedom of the Press in support of Fox 59. Other media entities that joined in the brief were:

ALM Media, LLC; The Associated Press; The E.W. Scripps Company; Gannett Co., Inc.; Indiana Associated Press Media Editors; Indiana Broadcasters Association; Indiana Coalition for Open Government; The Indiana Pro Chapter of the Society of Professional Journalists; International Documentary Assn.; The Media Institute; MPA – The Association of Magazine Media; National Press Photographers Association; Society of Environmental Journalists; Society of Professional Journalists; and Tully Center for Free Speech.

In a decision written by Judge Edward Najam Jr. with both Judges Terry Crone and Elizabeth Tavitas concurring, the panel ruled that E911 tapes did fall under the investigatory records provision and could be withheld from disclosure.

Unfortunately, I believe the decision was based on a flawed argument.
The appellate court drew upon the definition of “investigatory record” under APRA as information “compiled in the course of the investigation of a crime.” The Carroll County Sheriff and Prosecutor received copies of the E911 tapes as they investigated the suspected arson.

Judge Najam then wrote, “It would be incongruous to hold … that 911 calls may be withheld from public disclosure when requested directly from the law enforcement agency that compiled them, but then to hold otherwise when the records are instead sought from the dispatch center that originally received the calls. One purpose for the exception for investigatory records of law enforcement agencies is not to compromise the integrity of ongoing criminal investigation, and investigatory records compiled by our law enforcement agencies often originate outside those agencies. That purpose would not be served if the exception only applied to requests made directly to law enforcement or to records that originated with the law enforcement agency.”

This argument ignores the fact that public records may be created for an original purpose whose policy demands public access for purposes of accountability. The amicus brief supporting Fox 59 contains multiple examples of the benefits of public access to 911 tapes.

Applying Najam’s argument to all public records ‘compiled” by a law enforcement agency circumvents the basis of APRA 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.”

Here’s a real example that occurred several years ago in Lake County. The prosecutor seized the financial disclosure records of candidates for mayor of East Chicago as part of an investigation into corruption. The state legislature created the filing requirements for candidates for political office, so that the public could know who were offering support for a specific candidate.

The Times of Northwest Indiana requested copies of the disclosure statements and was initially denied by the prosecutor, who cited the investigatory records provision of APRA. Fortunately, he had second thoughts and make the public records available even while his investigation was continuing.

The appellate court decision not only allows police agencies to hide ineptitude or worse that would be public if E911 tapes are available, but allows a mayor and police chief to conspire to hide public records that could show corruption through having the chief “compile” public records for a so-called investigation.

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