A Hamilton County school district fulfilled its public disclosure duties when it provided information about a suspended employee’s discipline and personnel history, even though the district did not provide specific personnel records, the Indiana Court of Appeals has ruled. The appellate court used its Wednesday decision to call on the Indiana General Assembly to provide more clarity in how public agencies should respond to public records requests.
The public access case began in September 2016, when Fishers High School principal Jason Urban announced that Rick Wimmer, a physical education teacher and head football coach, had been placed on administrative leave. According to a police report obtained by WTHR-TV in Indianapolis, Wimmer was seen on surveillance footage putting his hands on a student’s arm and chest, backing the student up, then escorting the student to the locker room and dean’s office.
Later, the Hamilton Southeastern school board held a meeting and approved a five-day unpaid suspension for “Employee #10042.” WTHR reporter Bob Segall verbally requested the name of the employee, the grounds for and dates of the suspension, the date of the underlying incident, and confirmation of whether the teacher involved was the same teacher WTHR had previously reported on.
In a subsequent email, HSE Superintendent Allen Bourff said only that “the board action for which (Segall) inquired was due to not implementing instructions for classroom management strategies.” The Indiana public access counselor, however, said that response did not identify a sufficient factual basis, so Segall followed up with an additional request for information, this time in writing. The school district again declined to identify the teacher involved.
After a complaint from Segall, the public access counselor in March 2017 issued an advisory opinion again finding that HSE’s factual basis for the suspension was not sufficient. A subsequent opinion in May found that HSE had violated “the spirit and intent” of Indiana’s Access to Public Records Act.
Segall and WTHR then filed another public records request in October 2017, and in December Segall received information about Wimmer and confirmation that he was the suspended educator. But when the school district did not provide records from his personnel file, the TV station filed another complaint with the PAC. In its third opinion, the counselor determined HSE did not violate the public records act when it “summarized” information from Wimmer’s personnel file in response to Segall’s request, rather than providing actual records from the file.
WTHR and Segall then took its complaint to the Hamilton Circuit Court, seeking permission to inspect and copy the records it was seeking and to compel HSE to release “all disclosable data” forming the factual basis for the suspension, among other relief. Meanwhile, Wimmer confirmed to Segall that his suspension was related to the September 2016 incident.
The trial court ultimately ruled in favor of the school district, agreeing with the public access counselor that HSE did not violate the public records act by providing information rather than personnel files. The trial court also declined to compel the school district to provide additional information about the factual basis for Wimmer’s suspension.
The Indiana Court of Appeals upheld each of those rulings in a 37-page opinion Wednesday, with Judge James Kirsch first writing on the issue of the personnel file exception in Indiana Code § 5-14-3-4(b)(8)(A)-(C). Clauses (A)-(C) require public agencies to provide “general, biographical and employment information,” “information” about the status of formal charges against a public employee and the “factual basis” for a disciplinary action against a public employee, respectively.
Kirsch compared those provisions to I.C. 5-14-3-4(b)(5)(A)-(D), which also addresses discretionary exceptions to public disclosures. Clause (B) of that statute holds that “… the terms of the final offer of public financial resources communicated by [the applicable public agency] to an industrial, a research, or a commercial prospect shall be available for inspection and copying under section 3 of this chapter… .”
“Unlike the personnel file exception, this particular discretionary exception specifically provides that ‘the terms of the final offer of public financial resources … shall be available for inspection and copying under section 3 of this chapter,’ which shows the legislature’s intention to draw a clear link between the exception to the exception for the final offer of public financial resources and its effect with respect to the disclosure of that information,” Kirsch wrote. “We do not read any language that draws a connection to the general disclosure requirement of Indiana Code section 5-14-3-3 in clauses (A) through (C) of the personnel file exception.
“By the same token, we read nothing in the language of clauses (A) through (C) of the personnel file exception to prohibit a public agency from compiling such materials from a public employee’s personnel file and disclosing them with any necessary redactions pursuant to Indiana Code section 5-14-3-6 to meet its obligations under clauses (A) through (C) of the personnel file exception,” Kirsch continued. “In our de novo review of the interpretation of clauses (A) through (C) of the personnel file exception within APRA’s broader framework, we do not read that language to expressly require the release of underlying public records from a public employee’s personnel file nor do we read a firm connection showing that the effect of clauses (A) through (C) as an exception to the exception results in that information being subject to the general disclosure requirement of Indiana Code section 5-14-3-3.”
Turning next to WTHR’s argument that the school district did not provide a sufficient “factual basis” for the suspension, the COA first defined “factual basis” as a “fact-based account of what led to the discipline.” That term does not include a specific level of detail, Kirsch noted.
“We recognize that HSE’s responses do not provide the level of detail about the incident that the police report and Wimmer’s subsequent confirmation that he was suspended for that conduct do. Nevertheless, HSE’s responses explained the type of disciplinary action that was taken, the date the discipline was imposed, the length of the discipline, and why the discipline was issued, which was for Wimmer’s failure to implement classroom management strategies consistent with school policies,” Kirsch wrote.
“Based on the foregoing, we cannot say that the trial court was incorrect in concluding that HSE provided a sufficient factual basis to WTHR. The trial court properly denied WTHR’s motion to compel.”
The COA panel concluded with a note to the Indiana Legislature: “Given the policy considerations that arise under APRA and the many public agencies who receive requests for public records from a public employee’s personnel file, the General Assembly may wish to consider adding a statutory definition of factual basis and to specify the precise manner by which a public agency complies with its obligation to provide the information described in clauses (A) through (C) of the personnel file exception.”
The case is WTHR-TV v. Hamilton Southeastern School District and Rick Wimmer, 20A-MI-1701.