STATE OF INDIANA ) IN TI-IE BARTHOLOIVEW SUPERIORCOURT 2

)SS:
BARTHOLOWW COUNTY ) CAUSE NO. 03D02-1702—PL-000970

KRISTEN S. BROWN, )

)
Plaintiff, )

)
-vs—
)

)
CITY OF COLUMBUS, INDIANA, )

POLICE DEPARTMENT )

Defendant. )

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On December ‘18, 2019, the parties submitted a Stipulation of Facts and a Stipulated

Designation of Evidence. In this Order, the Court is not going to restate the facts the parties have

alreadystipulated to.

1. The Indiana Access to Public Records Act (the “APRA”) is codified at LC. § 5—

14-3-1 to -10. The APRA "is intended to ensure Hoosiers have broad access to most government

recbrds.” Evansville Courier & Press v. Vanderburgh Co. Health Department, 17 N.E.3d 922, 928

(Ind. 2014).

2. Section .1 of the APRA provides:

A fundamental philosophy of the American constitutional form of

representative government is that government isuthe servant of the people and
not their master. Accordingly, it is thepublx'c policy ofthe stare that allpersons
are entitled to full and complete injbrman'on regarding the affairs of
government and the oficial acts ofthose who represent them aspublic ofliciaIS
and employees. Providing persons with the information is an essential function
of a representative government and an integral ,part of the routine duties of
public officials and employees, whose duty it is to provide the information. This
chapter shall be Iiberally construed to implement this policy and place the
burden of proof for the nondisclosure of a public record on the public agency
that would deny access to the record ant} not on the person seeking to inspect
and copy the record.
LC. § 5-14-3—1 (emphasis added).

3. Plaintiff Brown alleges Defendant CPD violated §§ 5-14-3-5(c)(3)(C) and (D),

which provide as follows:

(c)This subsection does not apply to a private university police department, which
isgoverned instead by subsection (d). An agency shall maintain a daily log or
record that lists suspected crimes, accidents, or complaints, and the following
information shall be made available for inspection and copying:

(1) The time, substance, and location of all complaints or requests for
assistance received by the agency.

(2) The time and nature of the agency’s response to all complaints or
requests for assistance.

(3) Ifthe incident involves an alleged crime or infi‘action:

(A) the time, date, and location of occunence;

is a victim of
(B) the name and age of any victim, unless the victim
a crime underIC 35-424 or IC 35—42-35;
(C) the factual circumstances surrounding the incident; and
(D) a general description of any injuries, property, or weapons
involvad.

The information required in this subsection shall be made available for inspection
and cppying in compliance with this chapter. The record containing the information
must be created not later than twenty-four (24) hours afier the suspected crime,
accident, or complaint has been reported to the agency.

I.C. § 5-14-3—5(c) (emphasis added).

4. The Court finds that the information CPD initially provided to Brown pursuant t0

her public records request in the Public Incident Report contained insufficient “information” to

meet the requirements of Indiana Code 5-14-3-5(c)(3)(C) and (D). Nothing in the Public Incident

Report contains a description of the factual circumstances surrounding the incident underlying

CPD case number 16-06274. Merely listing “Criminal Mischief/Vandalism” and “Domestic

Disturbance” does not provide any factual circumstances. There was no general description of any

injuries, property, or weapons involved. The only reference to any injuries, property, or weapons

2
involved was “other weapon," which is an insufficient description; nor was there any description

of the property damage involved in the incident.

5. The Court thus agrees with the Public Access Counselor that the CPD provided

“insufficient detail” to Brown in response to her public records request. In this regard, the Court

notes that the Indiana Court of Appeals, in Anderson v. Huntington County Board 0f

éommissioners, 983 N.E.2d 613, 61 8 (Ind. Ct. App. 2013), stated that courts “should give

considerable deference to the opinionslof the Public Access Counselor.”

6. The Court agrees with the. CPD that “investigatory records of law enforcement

agencies” arc not required to be disclosed under Section 5-14—3—4(b)(1) 0f the APRA. However,

in this case, Plaintifi‘ Brown did not request CPD'S investigatory records. Rather, she specifically

sought the information required to be maintained and disclosed under Section 5-14—3—5(c) of the

APRA. Section 5-14-3-5(c) is an exception to the requirement that law enforcement investigatory

records need not be disclosed.

7. Because Brown did not request CPD’s investigatory records under Section 5-14-

3-4(b), the burden is not 011 Brown to prove that CPD’s denial ofher access to the information was

“arbitrary and capricious” under Section 9(g) ofthe APRA, LC. § 5-14-3-9(g).

8. The information sought by Brown existed at the time of her request This was

revealed at the November 7, 2017, hearing, and confirmed when CPD produced the Investigation

Report and Reporting Officer Narrative following the Court’s December 11, 2017, Order. CPD's

denial that such information existed was, at worst, a dishonest statement, and at best, an inacc-uratc

one. Either way, the information existed and should have been provided to Brown when she

requested it, or, at the very latest, afier the Public Access Counselor’s recommendation. (Exh. 1E).

9. The Court thus finds that CPD's reSponse to Brown’s public records request
violated the APRA.

Section 9(e) ofthc APRA, LC. “A person who has been

10. § 5-14-3-9(e), provides,

denied the right t0 inspect or copy a public record by a public agency may file an action in the

circuit or superior court of'the county in which the denial occurred to compel the public agency t0

permit the person to inspect and copy the public record.” That is what Brown did when she filed

the Complaint in this Court. However, during the pendency of this lawsuit, Brovm obtained the

information pursuant to the Court’s December 11, 2017, Order. Therefbre, an Order compelling

CPD to provide Brown access to the records is no longer necessary.

11. Section 9(i) of the APRA states: “[I]n any action filed under this section, a court

shall award reasonable attomey’s fees, court costs, and other reasonable expenses of litigation to

the prevailing party if: (1) the plaintifi‘substantially prevails.":I.C. § 5-14-3-9(i) (emphasis added)?

Section 9(i) of the APRA aiso requires that, in order to recover attorney's fees; the plaintiff must

obtain an opinion fiom the Public Access Counselor before filing suit in court. (“[T]hc plaintiff is

not eligible for the awarding of attorney’s fees, court costs, and other reasonable expenses if the

plaintiff filed the action without first seeking and receiving an informal inquiry response or

advisory opinion fiom the public access counselor.").

12. The word “shall" means that an award of attorney’s fees, court costs, and

reasonable expenses to a party who obtains an opinion fi'om the Public Access Counselor and

“substantially prevails” in an APRA case is mandatory. Indianapolis Newspapers v. Ind. State

Lottery Comm ’n, 739 N.E.2d 144, 156 (Ind. Ct. App. 2000) (“the award of attorney fees is no

longer discretionary, but mandatory, when the requirements of the statute are otherwise met”). In

ShepherdProps. C0. v. Int’l Union ofPaz'nters &Allied flades, Dist. Council 91, 972 N.E.2d 845,

852 (Ind. 2012), the Indiana Supreme Court stated that the APRA “mandates an award of
attorney’s fees to a plaintifi‘ who ‘substantially prevails’ if that party has first sought an advisory

opinion fi'om the public access counselor,” and that the attomey—fee provision “must be ‘liberally

construed to implement’ the policy of full access to public records and transparency of govemment

afi‘airs.” (emphasis added).

13. The term “prevailing party” means, “A party in whose favor a judgment is

8th ed. P.
rendered, regardless of the amount of damages awarded.” Black’s Law Dictionary, 1154

(West, 2004). The word “substantially” is not a term of limitation in this context. See UnitedStates

‘v. Bd. oanty. Comm ’rs ofHamilton Cntyfl, No. 1:02-CV—00107, 2005 U.S. Dist. LEMS 17663,

at *12 (S.D. Ohio Aug. 23, 2005) (stating, “to ‘substantially prevail’ a party would need to obtain 4

a somewhat lesser degree of relief than if they were to ‘prcvail’.”); Dixie Fuel Co. v. Callahan,

136 F. Supp. 2d 659 (E.D. Ky. 2001) (party substantially prevails where lawsuit is “reasonably

necessary to obtain the requested information” and had a “some causative effect upon the release

of that information.”).

14. Brown is entitled to recover her attorney’s fees in this matter because (a) she

obtained an opinion fiom the Public Access Counselor before filing suit; and (b) she substantially

prevailed inasmuch as she obtained the information she sought in her public records request and

obtained a judgment in her favor.

15. Brown also seeks the $100 civil penalty under Section 9.5(h) ofthe APRA, I.C. §

5—14-3—9.5(h). This section providms:

(h) In an action under this section, a court may impose the following civil penalties:

(1) Not more than one hundred dollars ($100) for the first violation.

16. Pursuant to Indiana Code 5-14-3-9.5 the Court, exercising its discretion, finds the

imposition of the $100 civil penalty is not appropriate in this matter because the Court finds that

S
 CPD did not intentionally violate the APRA. How many facts and circumstances need to be

disclosed in a given case is open to interpretation and disagreement. While the Court disagrees

with CPD’s interpretation of Indiana Code 5-14-3—5(c)(3), the Court does not find this

interpretation by CPD was made in bad faith or intentionally done to violate the law. In the Court’s

December 11, 2017 Order, the Court fashioned a remedy to try to comply with the spirit of and the

requirements of Indiana Code 5-14-3-5(c)(3).

IT IS THEREFORE CONSIDERED ORDERED AND ADJUDGED

1. Judgment is éntered in favor of Brown and against the Defendant, City 0f Columbus,

Indiana, Police Department.

2. Pursuant to Indiana Code 5-14-3—9(i), because the Court finds that Brown has

“substantially prevailed” in her action, CPD shall pay Brown’s reasonable attorney’s

fees, court costs, and expenses incurred in litigating this matter. The parties are ordered

to confer and' attempt to agee-upon the amount of Brown’s reasonable attorney’s fees,

court costs, and expenses. If the parties are unable to agree upon the amounts, Brown

shall file a petition for fees in this Court no later than sixty (60) days fiom the date of

this Final Judgment.

3. Pursuant to Indiana Code 5—14—3—9.5, CPD is not assessed a $100 civil penalty.

,
-
oz
SO ORDERED 0n this Z 2 day ofJune, 2019.

Richard W. Poynter, Spe’fial Judge

Bartholomew Superior Court 2