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Wednesday, August 31, 2005

Ind. Law - Public access to police records stymied by Evansville union contract; access to Public Counselor informal opinions

The Evansville Courier& Press has two stories on this public access issue today. The first, by Jimmy Nesbitt, is headlined "Man who sued officer still wants personnel file." Some quotes:

When Dan Hudson sued an Evansville police officer for allegedly holding him against his will, he expected to have access to the officer's disciplinary record. Disciplinary actions taken against city employees are public record. The Evansville Courier & Press requested copies of the records and received 16 pages of records from the Police Merit Commission. The documents showed Officer Brett Worthington was suspended five times between January 2002 and February 2005. The documents included the lengths of each suspension, but did not explain them. The city didn't provide additional records because of its contract with the police union.

"When you file a lawsuit against a police officer ... politics seem to interfere with justice," Hudson said. Hudson, who has fired his lawyer and is representing himself, got the disciplinary records through federal court proceedings. Worthington was suspended for several minor violations, including taking a long lunch break and "wearing an unauthorized uniform while working at a private business," according to a personnel order. None of the suspensions mentioned any use of excessive force. Hudson is still seeking Worthington's personnel file, which he says would include any unresolved complaints of abuse from the public. Hudson said City Attorney David Jones told him he could not release the records without permission from the Fraternal Order of Police.

The second, by Jennifer Whitson, is headlined "Public access to be decided." Some quotes:
INDIANAPOLIS - The city of Evansville's contract with its police officers keeps the public from learning details of disciplinary actions against officers.

The city signed the contract with the Fraternal Order of Police, prohibiting the release of any information from an officer's personnel file without permission from the officer. This would include the details behind why an officer was fired or suspended.

The state's Open Records Law requires the release of such information, according to Steve Key, counsel for government affairs with the Hoosier State Press Association.

"You can't trump state law with a contract provision," Key said. The state's public access counselor now will decide whether the public and the Courier & Press have the right to know why police officers are disciplined.

If the counselor rules that state law obligates the disclosure, a portion of the contract that the city negotiated with the police would be invalidated. The city of Evansville, the Fraternal Order of Police Lodge 73 and the Courier & Press together sent an informal inquiry to Public Access Counselor Karen T. Davis on Monday, asking her to resolve a dispute stemming from the newspaper's request for the disciplinary record of an officer. All parties have agreed to abide by her decision and not sue each other if Davis rules against their position. * * *

The contract, signed by Weinzapfel and approved by the City Council, states that not only will the city not disclose personnel records without an officer's consent, it is obligated to fight any court subpoena for the records.

Davis, who will decide the issue, said state law is clear that the "actual basis" behind any public employee's suspension or dismissal must be released. She said her office had not yet received the informal inquiry. But from a brief description of the facts, she said the law is clear.

"It sounds to me like (the city of Evansville) hasn't turned over the needed information," Davis said.

Police in South Bend, Fort Wayne and Indianapolis all regularly turn over basic details of an officer's discipline, including what behavior triggered the action, according to local media outlets. The Indiana State Police also regularly follows a similar procedure. [emphasis added]

Note that I have highlighted the phrase "informal inquiry." I did this because I have an issue with the Public Access Counselor's office.

The Counselor's website contains the agency's "Advisory Opinions Issued in Response to Formal Complaints (Ind. Code ยง5-14-5)" going back to 1998. They are even searchable. But the request in the above-story, and in fact the requests posed to the Counselor by most newspapers, and perhaps others, are termed "informal inquiries" and result in the issuance of "informal opinions." These are, by all rights, public documents.

But they are NOT available online. Not even a list of them is available, so that you don't have enough information to ask to see a copy of an informal opinion. The informal opinions are also not listed in the annual reports.

I had some e-mail correspondence with Counselor Davis about this earlier this year. On April 6, 2005, I wrote:

I have a question about the PAC's "informal opinions." I know that you publish your Advisory Opinions online. But you also issue informal opinions, such as the recent one to the NWI Times on the IEDC. My question is - how is the public know to that these informal opinions exist (i.e. do you maintain them, or a list of them, online?) and how can the informal opinions themselves be readily accessed?
Ms. Davis responded:
The public access counselor does not currently maintain a list of our written informal opinions, either on line or in the office. Our written informal opinions are issued in letters and in e-mail. They are all public records, and if identifying information is given, we can pull one and make it available. In the future, I hope to put some of the informal inquiry responses that involve letter responses on the website.
I wrote back:
Thanks for your prompt response, but I am disappointed. This may present the same public access problem I've seen for years with other agencies. For instance, a number of years back the IDEM office of enforcement had thousands of settlement agreements that were public records, but settlements were not announced, meaning you didn't know to ask for one unless you knew the name of the respondent. After many requests from the environmental bar, they started putting out a monthly list (which might be considered an "index"), and then later started making all settlements available in an online database.

Most people are, I think, unaware that you issue written informal opinions. Those that are aware that such opinions exist don't know any specifics (i.e. identifying details) and so are unable to make a request for those that may be of interest, or even may bear on their own situation.

My request would be that the PAC at a minimum publish online a timely and complete index of all your letter/e-mail informal opinions. This would also give a better picture of the number of inquiries you handle.
Ms. Davis responded in April that that was an excellent idea.

Posted by Marcia Oddi on August 31, 2005 09:27 AM
Posted to Indiana Law