Feb 25 2015, 10:09 am
APPELLANT PRO SE ATTORNEYS FOR APPELLEES
Robert L. Holleman Gregory F. Zoeller
Pendleton, Indiana Attorney General of Indiana
Kathy Bradley
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert L. Holleman, February 25, 2015
Appellant-Plaintiff, Court of Appeals Cause No.
49A05-1409-PL-443
v. Appeal from the Marion Superior
Court.
The Honorable Timothy W. Oakes,
Indiana Department of Judge.
Correction, Bruce Lemmon, as Cause No. 49D13-1405-PL-17608
Commissioner of the Indiana
Department of Correction, and
Bob Bugher, as Chief Counsel for
the Indiana Department of
Correction,
Appellees-Defendants.
Darden, Senior Judge
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Statement of the Case
[1] Robert Holleman sued the Indiana Department of Correction and its officials
for failing to respond to his public records request. The Department
subsequently produced documents in response to his request and moved to
dismiss his complaint on grounds of mootness. The trial court dismissed the
case and Holleman appeals. The Department concedes that remand is
necessary for further proceedings. We affirm in part, reverse in part, and
remand.
Issue
[2] Holleman raises two issues, which we consolidate and restate as: whether the
trial court erred in granting the Department’s motion to dismiss.
Facts and Procedural History
[3] On January 9, 2014, Holleman submitted a request for public records to the
Indiana Department of Correction, directed to its Commissioner, Bruce
Lemmon. The Department did not respond to Holleman’s request.
[4] Next, on February 11, 2014, Holleman filed a formal complaint with the
Indiana Public Access Counselor. The Counselor sent a notice to the
Department, via Commissioner Lemmon and Chief Counsel Robert Bugher,
requesting a response by February 24, 2014. The Department did not submit a
response to the Counselor.
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[5] On March 13, 2014, the Counselor issued an advisory opinion. He noted that if
the Department possessed the records Holleman requested, then the
Department “violated the Access to Public Records Act by not acknowledging
[Holleman’s] request within seven days thereby denying [Holleman’s] request.”
Appellant’s App. p. 19.
[6] Holleman began this case on May 20, 2014, by filing a civil complaint against
the Department, as well as against Lemmon and Bugher in their official
capacities.1 He alleged that all three defendants violated statutes that govern
access to public records by failing to respond to his request and to the
Counselor’s request for a response to his formal complaint. He asked the court
to impose a civil penalty of $100 on each of the three defendants. He also
requested reimbursement for costs he incurred filing his civil complaint.
[7] Subsequently, the Department, through Chief Counsel Bugher, sent Holleman a
response to his public records request and included documents the Department
asserted were responsive to Holleman’s request. Next, the Department filed a
motion to dismiss Holleman’s complaint, alleging the dispute was moot
because the Department had responded to Holleman.
[8] Holleman responded to the motion to dismiss, asserting that the case was not
moot because: (1) he had requested civil penalties, and (2) he had requested
reimbursement for his court costs. The Department filed a reply in which it
1
We will refer to all three defendants collectively as “the Department.”
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asserted that Holleman’s claims for penalties and court costs were rendered
moot when the Department provided the documents. In addition, the
Department asserted that, at a minimum, Lemmon and Bugher should be
dismissed from the case because they were not proper defendants in an action
involving a public records request.
[9] The trial court granted the Department’s motion to dismiss and dismissed
Holleman’s complaint with prejudice. This appeal followed.
Discussion and Decision
[10] The Department moved to dismiss Holleman’s complaint under Indiana Trial
Rule 12(B). An argument that a case is moot resembles a motion to dismiss for
failure to state a claim under Trial Rule 12(B)(6). A motion to dismiss for
failure to state a claim tests the legal sufficiency of a claim, not the facts
supporting it. Medley v. Lemmon, 994 N.E.2d 1177, 1182 (Ind. Ct. App. 2013),
trans. denied. We review de novo a trial court’s ruling on such a motion, and we
must determine whether the allegations on the face of the complaint establish
any set of circumstances under which a plaintiff would be entitled to relief. Id.
Courts are required to review the complaint in the light most favorable to the
nonmoving party, with every inference in the nonmovant’s favor. Greer v. Buss,
918 N.E.2d 607, 614 (Ind. Ct. App. 2009).
[11] With respect to access to public information, the General Assembly has
provided as follows:
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A fundamental philosophy of the American constitutional form of
representative government is that government is the servant of the
people and not their master. Accordingly, 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. 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 liberally 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 and not on the
person seeking to inspect and copy the record.
Ind. Code § 5-14-3-1 (1995).
[12] Indiana Code sections 5-14-3-1 et seq. set forth procedures that put into effect
the General Assembly’s policy of liberal access to public information. It
appears (and the Department does not dispute) that Holleman complied with
statutory procedures in filing his public records request. Furthermore, the
Department tendered its response six months after Holleman submitted his
request, with no explanation for the delay.
[13] In any event, the Department concedes that the trial court did not address
Holleman’s claims for civil penalties and court costs and further concedes that
those claims “did not become moot when Holleman was provided with the
records.” Appellees’ Br. p. 5. Thus, the Department agrees with Holleman that
“this matter should be remanded for further proceedings with respect to these
claims.” Id. Based upon our review of statutory authorities, we agree that he
has stated cognizable claims for relief with respect to civil penalties and court
costs. See Ind. Code §§ 5-14-3-9 (2013), 5-14-3-9.5 (2012). We thus reverse the
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trial court’s grant of the Department’s motion to dismiss as it pertains to those
claims and remand for further proceedings on those claims. We express no
opinion on the merits of those claims.
[14] Holleman argues that this Court, instead of the trial court, should determine
whether he is entitled to civil penalties and court costs. We disagree. The
statutes that govern the award of penalties and court costs require a degree of
fact-finding, so the trial court is the appropriate forum to address those claims.
See Ind. Code §§ 5-14-3-9 (court shall award court costs if it is proven that “the
plaintiff substantially prevails”), 5-14-3-9.5 (court may award civil penalties if it
is proven that the public official denied the request “with the specific intent to
unlawfully withhold a public record”).
[15] However, there is one point of contention between the parties. The
Department asserts that Holleman’s complaint is moot with respect to the
actual production of documents because the Department eventually produced
documents in response to his request. Holleman asks this Court to strike that
portion of the Department’s Appellees’ Brief, asserting that it goes beyond the
scope of the arguments he presents in his Appellant’s Brief. He further argues
on the merits that there is a live controversy as to whether the Department may
have unfairly withheld additional documents or information that is responsive
to his public records request.
[16] In his response to the Department’s motion to dismiss, Holleman never claimed
that his public records request remained live after the State produced the
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documents. He noted in passing that the Department produced “some of the
requested records,” Appellant’s App. p. 51, but his arguments focused primarily
upon his claims for civil penalties and attorney’s fees. In addition, his
response’s prayer for relief requested further proceedings on civil penalties and
costs but did not assert that the trial court needed to determine whether the
Department had fully responded to his public records request. Holleman failed
to place the trial court on notice that he intended to litigate the sufficiency of
the Department’s response to his public records request. He has thus waived
that claim for appellate review. See Bowden v. Agnew, 2 N.E.3d 743, 749 (Ind.
Ct. App. 2014) (claim waived for raising it for the first time on appeal). We
affirm the trial court’s grant of the Department’s motion to dismiss as it pertains
to whether the Department produced all of the documents or information in its
possession that is responsive to Holleman’s request.
Conclusion
[17] For the reasons stated above, we affirm in part, reverse in part, and remand for
proceedings consistent with this opinion.
[18] Affirmed in part, reversed in part, and remanded.
[19] Robb, J., and Crone, J., concur.
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