COA: Defendant with transcript has no right to trial recording

November 15, 2018

A trial court’s decision to decline to provide a criminal defendant with an electronic recording of his trial has been upheld, with the Indiana Court of Appeals ruling the defendant did not have a right to the electronic copy because he already had received the trial transcript.

The Tuesday memorandum decision in Michael M. Williams v. Allen County Superior and Circuit Courts, Wendy W. Davis, Lisbeth A. Borgmann and Marcia Terenet, 02A03-1708-MI-1913, traces back to 1998, when Michael Williams was tried and convicted of Class C felony battery. A decade later he obtained a copy of his trial transcript for use in a failed attempt at receiving post-conviction relief, and in January 2014 he requested a copy of the “trial disc” from the original battery trial.

The Allen County clerk denied Williams’ request, claiming the court “does not make copies of ‘trial disks.’” Williams responded by filing a complaint with the Indiana Public Access Counselor, who found that the court should provide Williams with the electronic recording, if possible.

However, neither party informed the counselor that Williams had previously been provided with a written transcript, a fact that played heavily into the COA’s decision to affirm the trial court. Williams sued the county courts and various employees for violating the Access to Public Records Act, but former Justice and now-Senior Judge Randall Shepard said the version of the statute in effect when Williams made the 2014 request did not entitle him to the electronic copy.

“Indiana Administrative Rule 9(D)(4) states that a person may not be denied a right to access a court record, but 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 …’,” Shepard wrote. “… Nothing in ARPA or Administrative Rule 9 at the time Williams filed his request required the Allen Superior Court or the trial court clerk to give him a second copy of the trial record in a different format.”

Further, because the clerk claimed the trial court did not have a copy of the recording, Shepard said “(c)ourt officials cannot be required to produce what they do not have … .” And failure not to have a copy of the recording was not a violation of the court’s recordkeeping obligations, he said, because courts at the time of Williams’ trial were only required to maintain recordings if a transcript was not prepared.

The applicable court records statute has since been changed, Shepard wrote in a footnote, but that change, even if applicable, would not help Williams’ case. Specifically, Indiana Code section 5-14-3-3 was amended this year to require that, “A public agency shall provide an electronic copy or a paper copy of a public record, at the option of the person making the request for a public record. This subsection does not require a public agency to change the format of a public record.”

“Even if the 2018 amendment applied to Williams’ case, it would not change the result because Williams originally requested a copy of the trial proceedings in paper format,” Shepard wrote in the footnote. “Moreover, it may be that this amendment actually constitutes a declaration about court procedure, which is governed by Supreme Court rules.”


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