Carroll County E911 v. Aishah Hasnie ( 2020 )

FILED
Apr 29 2020, 10:33 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark J. Crandley Margaret M. Christensen
Barnes & Thornburg LLP Mark R. Molter
Indianapolis, Indiana Dentons Bingham Greenebaum
LLP
ATTORNEYS FOR AMICUS – INDIANA Indianapolis, Indiana
PROSECUTING ATTORNEYS
COUNCIL ATTORNEY FOR AMICI –
REPORTER’S COMMITTEE
Christopher W. Naylor
FOR FREEDOM OF THE
Executive Director
PRESS, ET AL.
J. Thomas Parker
Deputy Director Michael A. Wilkins
Indiana Prosecuting Attorneys Council Broyles Kight & Ricafort
Indianapolis, Indiana
ATTORNEYS FOR AMICUS – STATE
OF INDIANA
Curtis T. Hill, Jr.
Attorney General of Indiana
Sierra A. Murray
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020 Page 1 of 16
Carroll County E911, April 29, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-MI-2682
v. Appeal from the Marion Superior
Court
Aishah Hasnie, The Honorable Timothy W.
Appellee-Plaintiff. Oakes, Judge
Trial Court Cause No.
49D02-1802-MI-7041
Najam, Judge.
Statement of the Case
[1] Carroll County E911—the 9-1-1 call and dispatch center for Carroll County
(“the Dispatch Center”)—appeals the trial court’s entry of summary judgment
for Tribune Broadcasting Indianapolis, LLC, d/b/a Fox 59 (“Fox 59”), on Fox
59’s complaint seeking disclosure of certain 9-1-1 calls pursuant to Indiana’s
Access to Public Records Act, Ind. Code §§ 5-14-3-1 to -10 (2019) (“APRA”).
The Dispatch Center raises the following two issues for our review:
1. Whether the 9-1-1 calls in question were records that may
be excepted from public disclosure under APRA.
Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020 Page 2 of 16
2. Whether the trial court abused its discretion when it
permitted Fox 59 to substitute itself for an employee as the
real party in interest in this matter after the employee had
left her employment with Fox 59.
[2] The 9-1-1 calls at issue here were originally received and recorded by the
Dispatch Center but, thereafter, acquired by local law enforcement agencies
pursuant to a criminal investigation. Those agencies asked the Dispatch Center
not to honor Fox 59’s APRA request because public disclosure of the calls
could compromise their investigation. APRA allows for otherwise public
records to be withheld from public disclosure when those records are the
investigatory records of law enforcement agencies. Accordingly, we hold that,
pursuant to that exception, Fox 59 is not entitled to summary judgment against
the Dispatch Center. We therefore reverse the trial court’s entry of summary
judgment for Fox 59 on the APRA issue. However, we affirm the trial court’s
substitution of Fox 59 as the real party in interest.
Facts and Procedural History
[3] The Dispatch Center “is a public safety answering and dispatch point for police,
fire, emergency medical[,] and emergency management service” for Carroll
County. Appellant’s App. Vol. III at 6. Its mission is to “serve as the
communications link between the citizen and public safety agencies; make
accurate identification of the citizen’s location and public safety response needs;
quickly and accurately activate public safety services; [and] provide
communications support and coordination of all public safety and supporting
agencies.” Id. The Dispatch Center’s Lead Communicator manages the
Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020 Page 3 of 16
Dispatch Center and its employees and is required to inform the Carroll County
Commissioners’ Office of any employee discipline within the Dispatch Center.
Id. at 42.
[4] In November of 2016, four children died in a residential house fire in Flora,
which is in Carroll County. Multiple 9-1-1 callers reported the fire to the
Dispatch Center, which recorded the calls (“the 9-1-1 calls”). Indiana State
Police Detective Benjamin Rector was part of the team that then investigated
the fire, which became a criminal investigation that remains ongoing. He
would later describe the 9-1-1 calls as follows:
7. The [9-1-1 calls] capture details regarding the fire relevant
to the law enforcement investigation.
8. The public release of [the 9-1-1 calls] would harm the
investigation.
9. This is because the recordings contain details about the fire
not publicly known, including who witnessed the fire, what they
reported about what they saw, when they witnessed it, the
witnesses’ awareness[es] of who occupied the home where the
fire occurred, and conversations occurring in the background of
the calls.
10. Allowing these details to become publicly known would
undermine the ongoing investigation because these details take
significance when investigators interview witnesses and potential
suspects.
11. If the details recorded in the [9-1-1 calls] became publicly
known, potential suspects and witnesses could use this
Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020 Page 4 of 16
information to evade questioning and it would limit
investigators[’] ability to know what information suspects have
first-hand knowledge of and which information witnesses learned
through public disclosure of evidentiary material like [the 9-1-1
calls].
12. Because the investigation is ongoing, investigators cannot
know all details in the recordings that may be of importance as
the investigation continues. Releasing the records at this time
may disclose facts of significance that potential suspects could
use in attempting to evade prosecution.
13. Gathering [9-1-1] recordings is a common investigative
technique in homicide and other major investigations. I have on
several earlier occasions preserved [9-1-1] recordings that were
later used as evidence in criminal prosecutions.
Appellant’s App. Vol. IV at 57.
[5] In June of 2017, Aishah Hasnie, then a news reporter for Fox 59, requested that
the Dispatch Center release the 9-1-1 calls to her under APRA. The Dispatch
Center declined, stating that, because “the fire is still under police
investigation” by the Carroll County Sheriff’s Department and the Carroll
County Prosecutor, those agencies were “exercising their discretion not to
permit disclosure of such recording or recordings at this time, pursuant to
[Indiana Code Section] 5-14-3-4(b)(1).” Appellant’s App. Vol. II at 15.
[6] Hasnie requested that the Indiana Public Access Counselor (the “PAC”) review
her APRA request and the Dispatch Center’s denial of her request. The PAC
opined that the Dispatch Center was required under APRA to disclose the 9-1-1
Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020 Page 5 of 16
calls. However, the Dispatch Center disagreed and continued not to disclose
the 9-1-1 calls. Hasnie then filed her complaint in the Marion Superior Court.
[7] In April of 2019, Fox 59 moved to substitute itself as the real party in interest
for Hasnie, who had left her employment there, and also moved for summary
judgment. The Dispatch Center objected to the substitution of parties and filed
its response to the summary judgment motion. In its response, the Dispatch
Center designated the affidavit of Detective Rector. The trial court granted Fox
59’s motion to substitute itself for Hasnie. The court then entered summary
judgment for Fox 59. 1 This appeal ensued.
Discussion and Decision
Issue One: Whether the Dispatch Center Lawfully
Withheld the 9-1-1 Calls from Public Disclosure under APRA
[8] We first address the Dispatch Center’s appeal from the trial court’s entry of
summary judgment for Fox 59 on the APRA request. Our standard of review is
clear:
We review summary judgment de novo, applying the same
standard as the trial court: “Drawing all reasonable inferences in
favor of . . . the non-moving parties, summary judgment is
appropriate ‘if the designated evidentiary matter shows that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.’” Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
1
The court stayed its order for Fox 59 pending appeal.
Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020 Page 6 of 16
fact is ‘material’ if its resolution would affect the outcome of the
case, and an issue is ‘genuine’ if a trier of fact is required to
resolve the parties’ differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable
inferences.” Id. (internal citations omitted).
The initial burden is on the summary-judgment movant to
“demonstrate [ ] the absence of any genuine issue of fact as to a
determinative issue,” at which point the burden shifts to the non-
movant to “come forward with contrary evidence” showing an
issue for the trier of fact. Id. at 761-62 (internal quotation marks
and substitution omitted). And “[a]lthough the non-moving
party has the burden on appeal of persuading us that the grant of
summary judgment was erroneous, we carefully assess the trial
court’s decision to ensure that he was not improperly denied his
day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
omitted).
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to
Hughley).
[9] Whether the 9-1-1 calls here can be excepted from disclosure under APRA is a
question of statutory interpretation. As the Indiana Supreme Court has stated:
[S]tatutory interpretation is a question of law that we review de
novo. In interpreting a statute, the first step is to determine
whether the Legislature has spoken clearly and unambiguously
on the point in question. When a statute is clear and
unambiguous, we apply words and phrases in their plain,
ordinary, and usual sense. When a statute is susceptible to more
than one interpretation it is deemed ambiguous and thus open to
judicial construction. When faced with an ambiguous statute,
our primary goal is to determine, give effect to, and implement
Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020 Page 7 of 16
the intent of the Legislature with well-established rules of
statutory construction. We examine the statute as a whole,
reading its sections together so that no part is rendered
meaningless if it can be harmonized with the remainder of the
statute. And we do not presume that the Legislature intended
language used in a statute to be applied illogically or to bring
about an unjust or absurd result.
Anderson v. Gaudin, 42 N.E.3d 82, 85 (Ind. 2015) (cleaned up).
[10] APRA generally provides that “it is the public policy of the state that all persons
are entitled to full and complete information regarding the affairs of
government and the official acts of those who represent them as public officials
and employees.” I.C. § 5-14-3-1. “Thus, in APRA our legislature declared that
transparency in government is the public policy of the State of Indiana.” Groth
v. Pence, 67 N.E.3d 1104, 1108 (Ind. Ct. App. 2017), trans. denied.
[11] However, “the public’s right of access to public records is also subject to well-
recognized exceptions under APRA.” Id. One of APRA’s exceptions states
that the following records are not subject to disclosure “at the discretion” of an
agency: “Investigatory records of law enforcement agencies . . . .” I.C. § 5-14-
3-4(b)(1). APRA defines an “[i]nvestigatory record” as “information compiled
in the course of the investigation of a crime.” I.C. § 5-14-3-2(i).
[12] As an initial matter, we cannot agree with the Dispatch Center’s assertion on
appeal that it is a law enforcement agency under APRA. APRA defines
“[p]ublic agency” to include “[a]ny law enforcement agency, which means an
agency or a department of any level of government that engages in the
Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020 Page 8 of 16
investigation, apprehension, arrest, or prosecution of alleged criminal
offenses . . . .” I.C. § 5-14-3-2(q)(6). The statute further lists the following
examples of an APRA law enforcement agency: “the state police department,
the police or sheriff’s department of a political subdivision, prosecuting
attorneys, members of the excise police . . . , conservation officers . . . , gaming
agents . . . , gaming control officers . . . , and the security division of the state
lottery commission.” Id. The Dispatch Center has not designated any evidence
that it is subject to the direction or control of any law enforcement agency.
Indeed, the designated evidence suggests it operates under the ultimate control
of the Carroll County Commissioners. And neither is the Dispatch Center
engaged in the “investigation . . . of alleged criminal offenses” when it merely
relays information from phone calls to relevant emergency personnel. The
Dispatch Center is a call relay center, not a law enforcement agency.
[13] Nonetheless, we agree with the Dispatch Center that the exception for
investigatory records of law enforcement agencies applies to the 9-1-1 calls here.
The Carroll County Sheriff’s Department and the Carroll County Prosecutor,
which are law enforcement agencies under APRA, “compiled” the 9-1-1 calls in
the course of their investigation of the suspected arson when they received
copies of the calls from the Dispatch Center. As the Dispatch Center notes, the
dictionary definition of “to compile” includes “to collect.” Appellant’s Br. at
16 (quoting Merriam-Webster’s online dictionary).
[14] And our case law is clear that, at least when requested from a law enforcement
agency directly, 9-1-1 calls can be excepted from disclosure under APRA. Lane-
Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020 Page 9 of 16
El v. Spears¸ 13 N.E.3d 859, 871-72 (Ind. Ct. App. 2014), trans. denied. In Lane-
El, a convicted child molester sought various police records underlying his
conviction, including a 9-1-1 call, pursuant to APRA. We stated as follows:
We have not frequently interpreted the term “investigatory
record.” However, we have held that although we are required
to construe exceptions to public disclosure laws strictly, that does
not mean that we will contravene expressed exceptions specified
by the Legislature. Journal Gazette v. Bd. of Trustees of Purdue
Univ., 698 N.E.2d 826, 828 (Ind. Ct. App. 1998). We have
interpreted the definition of “information compiled in the course
of the investigation of a crime” broadly to include records of
autopsies, even when the autopsy results in a finding that a crime
has not occurred. See Althaus v. Evansville Courier Co., 615 N.E.2d
441 (Ind. Ct. App. 1993) (holding that if a coroner can satisfy one
of the conditions of the autopsy statute, that is sufficient to satisfy
the coroner’s burden of proving that records are investigatory),
reh’g denied; see also Heltzel v. Thomas, 516 N.E.2d 103 ([Ind. Ct.
App.] 1987) (citing reasons for considering a coroner’s
investigations investigatory records, including the fact that the
record may contain “a narrative of the coroner’s observations,
which may also include the impressions of law enforcement
personnel present who are required to assist the coroner” and
that “at the time of a death investigation by the coroner, it is
often difficult to determine whether that particular case will be
the subject of a criminal prosecution”), trans. denied. Contrarily,
we have held that a subpoena is not the type of public record
which would automatically fall into the category of “information
compiled in the course of the investigation of a crime.” Evansville
Courier v. Prosecutor, Vanderburgh Cnty., 499 N.E.2d 286, 288 (Ind.
Ct. App. 1986), reh’g denied, trans. denied.
Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020 Page 10 of 16
Id. at 871. We then agreed with the police department that the defendant’s
“requested records were investigatory because they were compiled by [the
police department] during the investigation of [the defendant’s] . . . case.” Id.
[15] Thus, consistent with the plain text of the statute and pursuant to our holding in
Lane-El, we conclude that the trial court erred when it entered summary
judgment for Fox 59. It would be incongruous to hold, as we did in Lane-El,
that 9-1-1 calls may be withheld from public disclosure when requested directly
from the law enforcement agency that compiled them, but then to hold
otherwise when the records are instead sought from the dispatch center that
originally received the calls. One purpose for the exception for investigatory
records of law enforcement agencies is not to compromise the integrity of
ongoing criminal investigations, and investigatory records compiled by our law
enforcement agencies often originate outside those agencies. That purpose
would not be served if the exception applied only to requests made directly to
law enforcement or to records that originated with the law enforcement agency.
[16] Fox 59’s argument on appeal would effectively nullify APRA’s exception for
the investigatory records of law enforcement agencies. As the State explains in
its amicus brief on behalf of the Dispatch Center:
[Fox 59] argued below that a record may be disclosable under the
investigatory records exception if requested from one agency[]
but not disclosable if requested from a law enforcement agency.
If interpreted in this way, the exception loses much of its utility.
This is particularly true today because information is often stored
in electronic form. It would be nearly impossible for a law
Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020 Page 11 of 16
enforcement agency to ensure a record is not publicly disclosed
by another agency short of physically seizing a computer hard
drive or other electronic storage device. In other words, multiple
agencies have “possession” of a record when stored in electronic
form, and if the crux of disclosure is from which agency a record
is requested, rather than if a law enforcement agency had
compiled the record, the investigatory records exception ceases to
serve its purpose.
[Fox 59] also misinterprets the language of the exception by
essentially reading “compiled” to mean “created.” Even if a
record is created outside of a criminal investigation, it may still
be compiled for such a purpose. The plain language of the
statute must govern, and to hold as much facilitates the
underlying purpose of the exception—to facilitate the
investigation and prosecution of crimes.
State’s Br. at 8-9 (citations omitted). We agree with the State’s analysis.
[17] We briefly address three remaining points raised by Fox 59 on this issue. First,
Fox 59 asserts that the Dispatch Center failed to designate evidence in response
to the motion for summary judgment that would create a genuine issue of
material fact as to whether the 9-1-1 calls were in the actual possession of the
Carroll County Sheriff’s Department or the Carroll County Prosecutor. We
cannot agree. The Dispatch Center designated Detective Rector’s affidavit
regarding the 9-1-1 calls, in which Detective Rector stated that the public
release of the calls would compromise the ongoing investigation. Moreover,
Fox 59 designated the Dispatch Center’s initial response to the APRA request,
in which the Dispatch Center stated that the local sheriff’s department and
prosecutor were “exercising their discretion not to permit disclosure” of the 9-1-
Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020 Page 12 of 16
1 calls. Appellant’s App. Vol. II at 57. A reasonable finder of fact could infer
from the designated evidence that local law enforcement agencies exercised
control over the records. Accordingly, we reject Fox 59’s argument that it is
entitled to summary judgment based on the designated evidence.
[18] Fox 59 also asserts that this Court must defer to the PAC’s original
determination in Fox 59’s favor. Fox 59 is simply not correct on this point. As
we have explained:
The Public Access Counselor is appointed by the Governor. I.C.
§ 5-14-4-6. The Public Access Counselor has the authority,
among other things, to provide guidance to public agencies and
officials regarding Indiana’s public access laws. I.C. § 5-14-4-10.
This authority includes the power “[t]o issue advisory opinions to
interpret public access laws . . . .” Id. Advisory opinions, by
definition, are “nonbinding statements.” Black’s Law Dictionary
1265 (10th ed. 2014).
Our General Assembly created the Public Access Counselor
position to provide parties with efficient—but, correspondingly,
nonbinding—advice regarding compliance with Indiana’s public
access laws. In light of that purpose, a party “is not required to
file a complaint” with the Public Access Counselor “before filing
an action” in the trial court for an alleged violation of Indiana’s
public access laws. I.C. § 5-14-5-4. As such, when a complaint is
filed in a trial court after the Public Access Counselor has
rendered an advisory opinion on the matter, the court may find
the Public Access Counselor’s opinion persuasive but the court
owes no deference to that opinion.
Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020 Page 13 of 16
Groth, 67 N.E.3d at 1111 n.4. Thus, we are not bound by the PAC’s opinion. 2
[19] Third, Fox 59 asserts several versions of its proposition that “[t]he public policy
underlying APRA requires a liberal construction” of the disclosure requirement
and “narrow construction of its exceptions.” Id. Amici for the Reporters
Committee for Freedom of the Press and for Sixteen Media Organizations also
rely on broad policy concerns in their brief in support of Fox 59, adding several
examples of where media access to 9-1-1 calls has produced valuable public
information. See Reporters Committee Amici Br. at 10-17. Be that as it may,
the best evidence of our General Assembly’s intent regarding the scope of the
APRA exception for the investigatory records of law enforcement agencies is
the language of the statute itself, which is unambiguous. This Court has no
discretion to consider what other policies might be important. We find Fox
59’s and the amici’s arguments on this issue unpersuasive and instead apply the
unambiguous statutory language.
Issue Two: Substitution of Fox 59 for Hasnie
[20] The Dispatch Center’s other argument on appeal is that the trial court abused
its discretion when it permitted Fox 59 to substitute itself for Hasnie as the real
party in interest in these proceedings after Hasnie had left her employment at
Fox 59. Indiana Trial Rule 17 states that “[e]very action shall be prosecuted in
2
Indeed, the Dispatch Center is quick to point out that the PAC’s opinion here does not appear to be
consistent with prior PAC opinions. Appellant’s Br. at 22-23 (citing two prior PAC opinions).
Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020 Page 14 of 16
the name of the real party in interest,” and our trial rules grant courts the
authority to substitute parties as appropriate within the court’s discretion. E.g.,
Ind. Trial Rule 25. “An abuse of discretion is when the decision is clearly
against the logic and effect of the facts and circumstances.” Bennett v. State, 119
N.E.3d 1057, 1058 (Ind. 2019). An abuse of discretion also occurs “when the
trial court misinterprets the law.” Heraeus Med., LLC v. Zimmer, Inc., 135 N.E.3d
150, 152 (Ind. 2019).
[21] The Dispatch Center asserts that Fox 59 was not the real party in interest to
Hasnie’s original APRA complaint. According to the Dispatch Center, “[o]nly
the party making the [original] request has standing to bring an action under
APRA.” Appellant’s Br. at 36. In support of that argument, the Dispatch
Center cites Indiana Code Section 5-14-3-9, which refers to the “person making
the request” under APRA. Further according to the Dispatch Center, that
language prohibits the person who filed the APRA request or originally
captioned the complaint from being an agent for a business. The Dispatch
Center also asserts that any benefit that Hasnie’s request would have brought to
Fox 59 would have been only “incidental.” Id. at 37.
[22] We reject the Dispatch Center’s argument on this issue. As Fox 59 points out:
Hasnie submitted the [APRA] request . . . in the course of her
employment and as an agent of Fox 59. Fox 59 was the real
party in interest from the outset of this litigation . . . as Hasnie’s
actions . . . were solely in furtherance of Fox 59’s interests.
Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020 Page 15 of 16
Appellee’s Br. at 36. Fox 59’s assertions are readily supported by the facts and
circumstances that were before the trial court when it considered Fox 59’s
request to substitute itself for Hasnie. There is no dispute that Hasnie was
employed as a news reporter for Fox 59 at the time of her APRA request and
complaint; that she sought the records not out of some personal curiosity but
pursuant to that employment; and that, had she obtained the records, she would
have broadcast them on Fox 59 to, ostensibly, Fox 59’s benefit. Accordingly,
the trial court did not abuse its discretion when it permitted Fox 59 to substitute
itself for Hasnie after she left her employment with Fox 59.
Conclusion
[23] In sum, we hold that the trial court erred when it entered summary judgment
for Fox 59 and concluded that the Dispatch Center was not entitled to withhold
the 9-1-1 calls as investigatory records of law enforcement agencies. However,
we hold that the trial court did not abuse its discretion when it substituted Fox
59 for Hasnie as the real party in interest. Thus, we affirm in part, reverse in
part, and remand for further proceedings.
[24] Affirmed in part, reversed in part, and remanded for further proceedings.
Crone, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020 Page 16 of 16