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Wednesday, April 20, 2016

Ind. Gov't. - PAC opinion re access to audio recordings of grand jury

Daniel Brewington, an Ohio resident who, per this Sept. 11, 2013 IndyStar story, "was convicted in 2011 of intimidation of a judge, attempted obstruction of justice and perjury for comments he wrote on a blog about the Dearborn County judge who presided over his contentious divorce case," and who appealed his conviction to the Indiana Court of Appeals and Supreme Court [see list of related posts here], where he prevailed on the 1st Amendment portion of his appeal, recently filed a complaint with the Indiana Public Access Counselor (PAC), alleging "Violation of the Access to Public Records Act by the Dearborn County Superior Court 2." Brewington was attempting to obtain the audio recordings of grand jury proceedings in his criminal case.

Here is the 4-page opinion issued by the PAC on April 14, 2016. Some quotes:

The transcripts of the proceedings were indeed made available to you in 2011. You seek the audio recordings to compare with the transcripts. You also seem to take exception to the Court’s language stating that individuals who broadcast or publish the records may be held in contempt of court.

The heart of this issue is whether audio recordings are any different from paper copies for the purposes of public records release. Although the definition of public record includes both (see Ind. Code § 5-14-3-2(o), there are instances when electronic records are distinguished from paper records. A public agency that maintains records electronically, such as audio recordings, should make reasonable efforts to provide a duplicate of those records. See Ind. Code § 5-14-3-3(d).

When it comes to the judiciary, the APRA is balanced against several other regulatory considerations. For example, pursuant to Administrative Court Rule 9(D)(4), a Court may manage access to audio and video recordings of its proceedings to the extent appropriate to avoid substantial interference with the resources or normal operation of the court. According to the information provided, Judge Hill previously exercised his discretion under Ind. Code § 35-34-2-10 to allow reproduction of the grand jury transcript during the criminal proceedings. Because the case has been adjudicated and the transcript released, it stands to reason that providing you an audio copy of the proceeding would neither prejudice the operation of the court, nor compromise grand jury proceedings. Consider the commentary to Administrative Rule 9: [omitted] * * *

Neither should your reason for wanting the recordings prohibit your access. A requestor of public access should not have to justify the purpose of the request to any public agency, regardless of your intentions or reservations of the agency. With very limited exception, a compelling interest is not required for obtaining access to public records.

Finally, you note the Judge’s prohibition on broadcasting or publishing the materials. Under Judicial Code of Conduct Rule 2.17, a judge shall prohibit the broadcasting of information without prior approval of the Supreme Court. A judge may exercise some discretion in certain circumstances, but issuing an Order to prohibit broadcasting generally is appropriate.

RECOMMENDATIONS. Based on the forgoing, it is the Opinion of the Public Access Counselor that because the transcript of the grand jury proceedings have previously been provided to you, a copy of the audio recordings of said proceedings should be released as well. I have spoken with Judge Hill and he has indicated his willingness to amend the February 4, 2016 order and instruct the Dearborn County Court to produce the recordings.

Posted by Marcia Oddi on April 20, 2016 01:38 PM
Posted to Indiana Government