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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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