First Person: Battling for access in Boone County

Whenever possible, ICOG likes to highlight the experiences of citizens on the front lines of the ongoing struggles for government openness. This month, we take you to Boone County, where activist Stuart Showalter’s digging into local government has raised some fascinating questions. Can a judge prevent a citizen engaged in a lawsuit from requesting records under the state access law? Must a court provide citizens with a copy of an audiotaped proceeding?The best we can tell, the answers are no and yes. But we’ll let Showalter tell it. He’s the executive director of Boone County Child Advocates and a regional director of the Indiana Civil Rights Council, and he says he got a good primer on the ins and outs of the access laws when he attended the Public Access Boot Camp sponsored by ICOG last year.

This story involves three lawsuits – one with Showalter suing Thorntown and the others with Thorntown suing him – and some crazy twists and turns. It’s a bit hard to follow, but it’s worth the effort for the insights it offers on some officials’ stance regarding access and on what citizens are entitled to expect from those officials. Without futher ado, here’s Showalter’s tale:

 

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In February of this year I sued a Boone County judge, town and the county itself for alleged violations of Indiana’s Access to Public Records Act (APRA). I filed suit after receiving four opinions from the Public Access Counselor’s Office (PAC) that the act had been violated. The case was transferred to Hamilton County after Boone Superior Judge Mathew Kincaid recused himself.
In a small town where nepotism is the rule, you can get people who feel they are entitled to run the town as they wish and don’t hold each other accountable. This makes outside oversight necessary because it is what keeps government officials accountable and honest. This is one of the reasons Indiana has a public access law.
My requests sought records on issues ranging from issuing citations on repealed ordinances to who received free sidewalk replacement from the town and why my neighbor and I couldn’t get ours done.  The town either stated no records existed, that I must pay a fee to inspect them or simply ignored the requests.
Preceding the 2006 general election I placed political candidate signs in the porch windows of my home. The signs disparaged the county prosecutor and a judge. The town sued me alleging the signs were constructed in a way that endangered the public. After I ordered a police officer and two council members off my property they went to my neighbor’s house, the town judge, to discuss the case. I made a motion for the judge to recuse and the case was transferred to Boone Superior Court II with Judge Rebecca McClure presiding.
The case took an interesting turn in June of 2007. In an unrelated matter, on a public Web discussion board, people were making allegations against local police officers. I decided to ask the town of Thorntown and the city of Lebanon for copies of stalking complaints against police officers. Lebanon Police Chief Tom Garaffolo responded within two days and met with me where we discussed additional information that I had not requested but he thought would be helpful to me. Thorntown, though, had a different approach.
Thorntown’s attorney, Cy Gerde, used the town’s lawsuit against me to ask McClure to order me to not use the APRA when seeking information from the town. Gerde argued that a section of the APRA, which states that the PAC may not issue an opinion in a matter in which a lawsuit has been filed under the open meetings or public records act, means that a litigant with the town may not use the Act. I argued that McClure lacked jurisdiction and that whether I and the town were involved in other litigation was irrelevant as the Indiana Court of Appeals had stated in Kentner v. IPEP.McClure sided with Gerde, ordering me to use the Indiana Trial Rules when seeking information from the town of Thorntown. I simply ignored that order and made additional requests as people asked me to seek more information. Gerde again sought to have McClure halt me from using the APRA but she did not enforce her order.

Returning to my APRA lawsuit against Thorntown, Special Judge William Hughes in Hamilton County presided over the town’s motion to dismiss on May 19, 2008. Gerde again argued that I was precluded from using the APRA by McClure’s ruling. I argued that just because you get a speeding ticket in a town and the case is pending doesn’t mean you can no longer access public records through the APRA as McClure ruled. Judge Hughes rejected Gerde’s motion, so my lawsuit against the town will go forward.
Meanwhile, the town of Thorntown has again sued me, this time for a sign I placed in my yard along with three toilets commenting on the town’s inability to maintain emissions from the towns sewage pond within state limits. That case is set for trial on August 28, 2008, in the Boone Superior Court II.  Judge McClure has already ordered that I am to pay the town’s attorney fees prior to trial.I think it is very important that government officials be held accountable to the people, and Indiana’s public access laws are a way of doing that.  What we have here is a town that wants to make up its own rules. Even the town attorney is arguing that he only applies the law as he wants it to be, not as it is. By using the Indiana Coalition for Open Government Web site I got a great start on accessing public records and compelling production through the courts. Anyone can do that when they have been wrongfully denied and have informative resources like ICOG to help them.

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So it would seem that citizens can avail themselves of the Access to Public Records Act even if they are involved in litigation with the public agency in question – something that could be handy to know for other citizen activists out there.

One other interesting issue arising out of Showalter’s battle with Thorntown involves accessing audio recordings of court proceedings. Briefly, a court cannot force a requester to purchase a transcript of such recordings. Rather, the public must be allowed, at minimum, to listen to the recordings. You can read Public Access Counselor Heather Willis Neal’s opinion on this by clicking here. But wait until you see the rigid conditions under which McClure is complying with that opinion – click on to read her letter to Showalter (page 1, page 2).

Thanks, Stuart, for sharing your experience. And if there are other activists out there who would would like to tell a story about a success or struggle involving public access, drop us a line at info@indianacog.org .