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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 have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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