Tuesday, October 22, 2013
Ind. Law - More on: Bill gives agency right to refuse to acknowledge a record's existence
This opinion issued Oct. 17, 2013 [link now fixed] by the Public Access Counselor, Luke Britt, in response to a complaint made by the Indianapolis Star, re the answer made by the Indiana State Police to a Star records request, may be the first formal application of the new provisions:
However, ISP provided a response to you on September 16, 2013, stating all of the records you were seeking either did not exist or were not subject to disclosure. Specific to your current complaint, the ISP denied the records reasoning that the public disclosure of the records would threaten public safety under the APRA. * * *
Ind. Code § 5-14-3-4(b)(19) states that the release of record or a part of a record, the public disclosure of which would have a reasonable likelihood of threatening public safety by exposing a vulnerability to terrorist attack is at the discretion of the public agency. A record described under this subdivision includes a record assembled, prepared, or maintained to prevent, mitigate, or respond to an act of terrorism.
Ind. Code § 5-14-3-4.4(b)(1) further holds the agency who is the custodian of the documentation containing sensitive information may deny the disclosure of the record or part of the record. The ISP’s response is in substantial compliance with the other portions of the statute.
The ISP has stated in their response it is their determination the records you seek fall into this exception. This complaint has weighed heavily on the ISP’s public information staff. They unilaterally reached out to this Office to attempt to satisfy as much of the request as possible. It appears this was done in the spirit of cooperation and with a focus on transparency. In fact, the ISP did make the records available for inspection. I declined out of deference to their expertise in matters of public safety.
That being said, you are fully accurate in your statement that, “Contracts and other financial records are vital information that show how government agencies spend taxpayer dollars and are traditionally among the most readily available public documents at an agency”. Whenever possible, this Office, as is its charge, views the facts in a light most favorable to the individual who has been denied a record. The burden is on the public agency to show why a record may not be released. ISP maintains the nature of this records request is particularly sensitive. As I am not a finder of fact, nor am I a subject matter expert in public safety or terrorism, I cannot accurately determine if the records contain information that would threaten public safety. If they do, then the withholding of the records is not a violation. If they do not, then it would be a violation. That fact- sensitive matter would be determined by a trial court which may compel disclosure through injunctive relief or the discovery process.
Posted by Marcia Oddi on October 22, 2013 09:48 AM
Posted to Indiana Law