ICOG Nominated Teen For Actions In Access Lawsuit

As the mayor of Kokomo thanked the horde of citizens who had listened to his State of the City Address on a cool February evening, I was in line to shake his hand.

Mayor Matt McKillip had seen an article in The Kokomo Tribune just days before—I’d won an essay contest—and instructed his secretary to invite me to the speech. He told me he was “impressed” with my writing, which he knew was in direct political conflict with his ideology, but lightheartedly, and in deference, asked me to critique his speech. I focused particular praise on his efforts to establish a new city Web site, and he proposed that I sign up for the city’s e-mail newsletter.

And so it began.

Following the suggestion, I wanted—and expected—news related to city functions sent directly to my inbox. The typical concerned citizen.

But within a week I received a message from the mayor of clear political nature. “A Minute with Matt” even beckoned me to his golfing fundraiser. The logo of EGov Strategies, based in Indianapolis, was displayed in both the city-funded messages and the e-mails marked “Paid for by Citizens for McKillip.” I easily concluded that the list I signed up for with the city was also being used for his political purposes.

Illegal? Unethical? The Indiana Elections Division advised me that it was neither. They wrote, in an informal advisory, “ It appears from your description that this list is compiled from a list of persons who subscribe to emails from the city. I assume that this is somehow related to the operation of the city Web site. If that is true then the e-mail list may be public record. If a record is a public record then it is subject to disclosure to any citizen (including the Mayor) unless three [sic] is a specific statute that indicates the record is not subject to disclosure. The public records law is found in IC 5-14-3. I could find no exception that protected emails from the public records law…”

To test the theory, I filed a public records request to obtain a copy of the e-mail list, and was denied.

The city’s decision hinged on Indiana Code 5-14-3-3 (f), which protects names and addresses from disclosure under the Access to Public Records Act. If e-mail addresses were classified as “addresses,” the city would not be required to provide a copy of the list. Their position makes an e-mail address the legal equivalent of a street address. Now think of the consequences of that inane precedent.

Add in that the statute is to be “construed liberally” in favor of disclosure, the fact that legislators showed absolutely no intent to protect e-mail addresses when writing the law, and the city is advocating an exceptionally broad interpretation of the law.

Maybe the city was simply banking on the fact that ordinary Americans like me can’t access their own judicial system to enforce the law.

But then I took a call from a local reporter after writing about the dispute online, who advised me to file a complaint with the Public Access Counselor. Karen Davis, the counselor, issued an advisory opinion in my favor. The city chose to defy the opinion, even issuing a message to the e-mail list in question claiming to be “defending [the] privacy” of the people of Kokomo and advocating their legal stance. But then, in the same e-mail, the mayor announced that he would be working with State Senator Jeff Drozda to update the law to protect email addresses, just in case.

Now the case is in court, thanks to a kind and very capable lawyer I have in William Groth, who has volunteered to represent me pro bono. (see the lawsuit here)

I am convinced that this is not a case of incoherent legislation. Citing Pennsylvania Company v. Mosher, Davis wrote, “the words of a statute will be construed in their plain, ordinary and usual sense.” Following that precedent, I know of no person, judge or otherwise, who uses the term “e-mail address” plainly interchangeable with “address.”

This case will place very profound issues about our government not only before the judiciary, but also the legislature. For those who believe government should be transparent to the very citizens it was established to serve, public records are vital to keeping the government accountable. Suppressing information creates an uneducated electorate, an out of control government, and flies in the face of the law.

Localities routinely abuse the Access to Public Records Act because the law lacks the sole tenet that holds our judicial system together: enforcement. Until the legislature empowers the Public Access Counselor’s office to make binding decisions, citizens will have no other recourse but to invest in a costly and time consuming endeavor: filing suit. The City of Kokomo, and of others like it all across America, know this. That’s what they rely on when they transform public records into files only accessible through the courts and those admitted to the bar.

And you shouldn’t need a lawyer to enforce the law.