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Thursday, February 26, 2015

Ind. Gov't. - State Police resist public access to a 1972 video recording [Updated]

A video recording they have shown hundreds of times.

That information is from a Feb. 20th PAC response to: Formal Complaint 15-FC-17; Alleged Violation of the Access to Public Records Act by the Indiana State Police. Some quotes:

On December 16, 2014, you submitted to the ISP a public records request seeking access to a copy of records related to the 1972 Bull Island rockfest (a.k.a. the Erie Canal Soda Pop Festival and the Labor Day Soda Pop Festival), particularly an unedited copy of a video recording taken by the ISP. * * *

On December 17, 2014, Capt. Dave Bursten responded to your request by email, denying access to the records. The ISP maintained the records sought relate to investigatory records and fall under an exemption Ind. Code § 5-14-3-4(b)(1). You also take exception with the categorization of the records as investigatory as the ISP did not have jurisdiction over Bull Island; it is Illinois territory. * * *

The ISP has denied any institutional knowledge the film had been shown in the past, however, you have provided an Indiana State Police bulletin from 1973 announcing the film had been shown 249 times to a total of 30,000 people from 1970-1973.

ISP has also determined the video displays many scenes of illicit activity. The release of the video could “result in possible civil action against the State” by those individuals recorded. ISP has used its discretion to withhold the record on the basis the harm of disclosure outweighs public interest. * * *

ANALYSIS * * *

While I believe the information you request falls under the category of investigatory records as it was originally compiled in the course of an investigation of a crime (or for crime prevention purposes), the nature of the record changed course after it was displayed multiple times to the public.

I do not agree with ISP’s argument a record does not lose its status for discretionary release just because it has been released in one capacity at a point in time. To release to one group or groups, but deny others could be viewed as arbitrary and capricious. Without a compelling reason for doing so, if a record is intentionally released as a disclosable public record, then an agency can no longer exercise that particular discretion ex post facto. From the information provided in the form of the State Police newsletter from 1973, it is clear the video has been shown many times to interested members of the public.

Release to a court or other law enforcement agency in the investigation process notwithstanding, a record is deemed disclosable once released as a public record. The bell, as it is said, cannot be un-rung. The ISP clearly demonstrated the video as a cautionary depiction of illegality in the past and has therefore consented to its release.

ISP also argues:

ISP determined that significant portions of the video display images of illicit drug use, nudity, and sexual intercourse occurring at the festival. The individuals engaged in these activities could result in possible civil action against the State by these individuals. ISP scrutinized its decision and used our discretion to withhold the record as investigatory, and believes that the harm of disclosure outweighs the public interest of transparency in this case.
The Access to Public Records Act does not have a privacy clause with the exception of narrow exceptions such as social security numbers and confidential financial information. Embarrassment of individuals voluntarily engaging in illegal and illicit acts is not an exception to disclosure. Likewise, the mere threat of a lawsuit is not an exception either. Moreover, the proposition a lawsuit would be successful is dubious as there is no expectation of privacy for engaging in lewd or illegal acts in public.

CONCLUSION. Based on the foregoing, it is the Opinion of the Public Access Counselor the Indiana State Police should release the entirety of the Bull Island video upon request.

[Updated] Well, it turns out this was a well-known event in Indiana history. The ILB quickly found this YouTube video, really a slide-show with music: "Erie Canal Soda Pop Festival - Bull Island Illinois 1972." Wikipedia has an entry.

And here is a long 2008 Evansville Living article by Maureen Hayden (now CNHI statehouse reporter) and Jessica Levco with the heading:

On Labor Day weekend, September 1972, two concert promoters put on a rock show in the spirit of Woodstock, but they were woefully unprepared for the overrun of more than 200,000 people. They came. They saw. They got stoned. Two people died. Its official name was the Erie Canal Soda Pop Festival, but for those who witnessed the mayhem, it is remembered simply as Bull Island.
Finally, in 2012 Sean McDevitt had a long feature in the Evansville Courier & Press, headed "Woodstock on the Wabash: The Bull Island rockfest, 40 years later."

Posted by Marcia Oddi on February 26, 2015 03:46 PM
Posted to Indiana Government