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Public-record email case focuses on scope of requests

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A dustup over access to public records reveals an uncertain standard exists for what is considered a reasonable request to disclose public officials’ emails under Indiana public record laws.

The Indiana Court of Appeals on Dec. 18 heard arguments in Seth Anderson v. Huntington County Board of Commissioners, 35A04-1207-MI-357. Judges Michael Barnes and Elaine Brown and Presiding Judge John Baker had tough questions about why Seth Anderson’s appeal proceeded after the county relented and provided him the emails he requested, which totaled more than 9,000.

anderson Anderson

“Right now, there’s a bigger issue,” Anderson’s attorney, Justin Wall of Huntington, argued after judges suggested the lawsuit boiled down to a complaint for attorney fees. “Mr. Anderson’s rights really have been infringed,” Wall said.

He said Anderson received the emails he requested from the Huntington County commissioners only after he filed a lawsuit because his request was initially denied by local officials – an opinion that was affirmed when it was appealed to the state Office of Public Access Counselor.

“He didn’t change one thing in his request, and he received the emails,” Wall said. “We believe the impetus to receiving them was litigation.”

Huntington County Deputy Attorney Matthew Grantham told the court, “I think we are just here about attorney fees. … We don’t believe (Anderson) prevails properly.”

Anderson, an engineer who also has been a blogger, occasional radio personality and candidate for Huntington County Council in the 2012 Republican primary, had asked for emails sent and received by four public officials within a certain timeframe. He was looking into why three local officials were dismissed.

In an interview, Anderson said that he pursued the appeal because he saw fundamental principals at stake.

“The citizenry has a right to inspect those documents,” Anderson said. “I think there should be more scrutiny on public officials, and the current public access counselor ruling makes it difficult for citizens to oversee them.”

hoage Hoage

Indeed, Huntington County officials provided Anderson with the emails he sought in spite of a public access counselor ruling that said they didn’t have to. The PAC ruled Anderson’s request wasn’t made with “reasonable particularity” as required under I.C. 5-14-3-3.

“There have been dozens and dozens of cases or appeals to the public access counselor that have been denied” for lack of reasonable particularity, Anderson said.

Public Access Counselor Joe Hoage said complaints about denial of access to email make up a relatively small portion of his office’s caseload. Nevertheless, he said Anderson’s case may further define “reasonable particularity.”

Current PAC opinions hold that to meet that standard, a request must name the sender and recipient as well as the period of time for which emails are sought.

“The public access counselor’s office has been pretty consistent on it,” Hoage said. But neither the courts nor the Legislature has affirmed the guidance of the PAC’s opinions, he explained.

“I can see both sides of this argument,” Hoage said in an interview. “Hopefully, we can have a definitive answer on what reasonable particularity means in the scope of email communication.”

Hoage said he advises public officials using government-funded email accounts that they should have no expectation of privacy. “Almost every single time you send or receive an email, it’s going to be considered a public record,” he said. “The general rule is the record is disclosable.”

But there are exceptions, among them: Judges’ emails are exempt; law enforcement emails that are investigatory or work product are protected from disclosure; any attorney-client communication would not be considered public; and “deliberative material” can be exempt. An example of the latter, Hoage said, could be officials’ discussions on the pros and cons of building a bridge.

Grantham, the Huntington County deputy attorney, said the county and other public agencies have both an obligation to provide public records and a duty to protect records that might be confidential. While Wall argued that technology has made fulfilling email requests a searchable function that can be done with relative ease and little time and expense, Grantham said that’s not quite the whole story.

To fulfill Anderson’s request, he said, the emails had to be identified and then a human resources employee had to screen the emails and redact potentially private information or that which would not be subject to a public records disclosure.

Attorneys in the Anderson case also disagreed over how much weight the court should give opinions of the public access counselor.

“We ought to give due deference to his opinion,” Grantham said. “I don’t believe there needs to be a precise test” for reasonable particularity. Wall said that standard should be “literally construed in favor of persons like Mr. Anderson.”

During Wall’s rebuttal, Baker had sharp words for him, suggesting that little could stop him from seeking transfer to the Indiana Supreme Court in an to attempt to rack up more attorney fees.

“You ask for too much, you get nothing,” Baker said. “…When Anderson gets everything he wanted … he’s not harmed.

“Bears make money, bulls make money, but pigs get slaughtered,” Baker said.

Wall replied that he was following advice from his elders to fight for what’s right.

Anderson said that’s why he decided to pursue the appeal, too; that attorney fees weren’t the issue.

“It’s a lot of money to me that I’ve funded this with because I know there are a lot of people out there who I don’t believe would have gotten to the point I’ve gotten to,” he said.

“When the records were provided to me, a letter came along that said, ‘here are the emails, even though we’re under no legal obligation’” to furnish them, Anderson said. “I want there to be a legal obligation to provide those records.”•
 

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  1. I will continue to pray that God keeps giving you the strength and courage to keep fighting for what is right and just so you are aware, you are an inspiration to those that are feeling weak and helpless as they are trying to figure out why evil keeps winning. God Bless.....

  2. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  3. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  4. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  5. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

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