Seth Anderson v. Huntington County Board of Commissioners

FILED
Jan 29 2013, 9:03 am
FOR PUBLICATION
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JUSTIN R. WALL ROBERT S. GARRETT
Wall Legal Services MATTHEW G. GRANTHAM
Huntington, Indiana Bowers, Brewer, Garrett & Wiley, LLP
Huntington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
SETH ANDERSON, )
)
Appellant-Plaintiff, )
)
vs. ) No. 35A04-1207-MI-357
)
HUNTINGTON COUNTY BOARD OF )
COMMISSIONERS, )
)
Appellee-Defendant. )
APPEAL FROM THE HUNTINGTON SUPERIOR COURT
The Honorable Kenton W. Kiracofe, Special Judge
Cause No. 35D01-1203-MI-230
January 29, 2013
OPINION – FOR PUBLICATION
BAKER, Judge
In this case, we are asked to determine what suffices as “reasonably particular” in
a request for public records submitted under the Access to Public Records Act (APRA).1
Here, appellant-plaintiff, Seth Anderson, submitted four requests for emails pursuant to
the APRA. Each request was identical – all seeking the emails sent or received within a
four and one-half month time span – the only difference between the requests was that
each named a different employee.
About one week later, appellee-defendant, the Huntington County Board of
Commissioners (the “Commissioners”), sent a letter through counsel to Anderson,
requesting further clarification and assuring Anderson that once clarification was
received, the appropriate records would be provided. Instead, Anderson filed a formal
complaint with the Public Access Counselor, who upheld the Commissioners’ decision,
insofar as Anderson’s request was not “reasonably particular” as required by the APRA.
Anderson filed a complaint to compel access to the public records, seeking a court
order to compel the Commissioners to supply the records as originally requested and for
attorney fees and costs. The Commissioners informed Anderson that they intended to
comply with his requests as written. Anderson concedes that he has received all
requested information but not before a hearing was held after which, the trial court
concluded that the Commissioners did not improperly deny Anderson’s requests because
they were not “reasonably particular” and denied his request for attorney fees and costs.
1
Ind. Code chapter 5-14-3 et seq.
2
We conclude that, inasmuch as a county employee spent ten hours and purchased
new software to retrieve 9500 emails that then had to be turned over to human resources
for further redaction, we agree with the Public Access Director and the trial court that
Anderson’s requests were not reasonably particular. Likewise, we conclude that
Anderson has not substantially prevailed under the APRA and is, therefore, not entitled to
attorney fees, court costs, and reasonable expenses.
FACTS2
On January 26, 2012, Anderson made four requests to the Commissioners’ Human
Resources Director, Erika Devine, for email communications that fell under the APRA.
More particularly, Anderson requested:
a. Emails that qualify as a public record that were sent to or from Erika
Devine between September 1, 2011 & Jan 15, 2012.
b. Emails that qualify as a public record that were sent to or from Kathy
Branham between Sept. 1, 2011 & Jan 15, 2012.
c. Emails that qualify as a public record that were sent TO or FROM Leon
Hurlbert between September 1, 2011 And [sic] Jan 15, 2012.
d. Emails that qualify as a public record that were sent TO or FROM Tom
Wall between September 1, 2011 and Jan 15, 2012.
Appellant’s App. 16-19 (emphases in original).
On February 2, 2012, the Commissioners, through their attorney Robert Garrett,
sent Anderson a letter, explaining that his request was denied because under Indiana
Code section 5-14-3-3, Anderson’s request did not identify with “reasonable
particularity” the records being requested. Nevertheless, the Commissioners assured
2
We heard oral argument on December 18, 2012, in Indianapolis. We thank counsel for their informative
oral and written presentations.
3
Anderson that once he had described the requested public records with reasonable
particularity, the appropriate records would be provided to him.
Anderson, however, did not send a second request. Instead, Anderson filed a
formal complaint with the Office of the Public Access Counselor. In a March 15, 2012
opinion, the Public Access Counselor, Joseph Hoage, determined that “if the County
denied your request for failure to identify with reasonable particularity the records that
were sought, it violated the APRA. The County’s proper response to such a request
would be to seek further clarification from you rather than simply denying the request.”
Appellant’s App. p. 31.
Hoage further concluded that “[a]s to all other issues, it is my opinion that the
County has not violated the APRA.” Id. at 34. Put another way, the Commissioners had
not violated the APRA because they had not denied Anderson’s request outright but had
requested that Anderson revise his request such that it was reasonably particular as
required by the APRA.
In Hoage’s opinion, he referenced several previous opinions regarding email
correspondence, pointing out that “e-mail is a method of communication and not a type
of record; requests for records that only identify the records by method of communication
only are not reasonably particular.” Id. at 33. Hoage gave examples to illustrate his
reasoning and provide guidance. For instance, “a request for all e-mail correspondence to
and from Jane Doe for a range of dates is not reasonably particular.” Id. “However, a
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request for all e-mail correspondence from Jane Doe to Jim Smith for a range of dates
would be reasonably particular.” Id.
Again, rather than clarifying his request, on March 27, 2012, Anderson filed a
complaint to compel access to public records. In the complaint, Anderson sought a court
order compelling the Commissioners to provide the records as he had originally
requested. Additionally, Anderson sought to recover his attorney fees and costs.
Sometime in April, possibly even before the Commissioners had been served with
Anderson’s complaint, the Commissioners informed Anderson that they intended to
comply with his requests as he had originally written them. Tr. p. 42-43.3
Notwithstanding the Commissioners’ willingness to comply with Anderson’s requests,
the trial court held a hearing on Anderson’s complaint on May 17, 2012. During the
hearing, Anderson admitted that he had been told that he would receive the information
that he had requested but that there would be a delay so that the Commissioners could
redact certain non-public information like social security numbers and information
protected by HIPAA. Id. at 53. Still, Anderson defended the scope of his requests,
maintaining that it was his right to look for “unknown unknowns” in his effort to obtain
information. Id. at 83.
To comply with Anderson’s request, J. Ryan Wall, a Huntington County
Information Technology (IT) employee, had to spend ten hours of his time and purchase
3
Anderson includes in his Appendix, Defendant’s Exhibit A. Appellant’s App. p. 37. From this exhibit,
it appears that the Commissioners intended to comply with Anderson’s requests, as written, on April 2,
2012. Id. However, the trial court excluded Exhibit A as evidence, and the Commissioners do not
challenge this evidentiary ruling on appeal. Tr. p. 86.
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new software. Wall compiled 9500 emails and provided them to the Human Resource
Director on May 9, 2012, for further review and redacting. Anderson concedes that he
received all the information as he originally requested, on July 12, 2012. Appellant’s Br.
p. 14.
In the trial court’s June 28, 2012 order, it concluded that “the County did not
improperly deny access to the records because Anderson was not ‘reasonably particular’
when he requested e-mails that qualify as public records that were sent to, or from Tom
Wall, Leon Hurlburt, Kathy Branham, an[d] Erika Devine between September 1, 2011
and January 15, 2012.” Appellant’s App. p. 5. Thus, the trial court denied Anderson’s
request for an order to compel the Commissioners to provide Anderson the requested
emails and his request for attorney fees, court costs, and related expenses. Despite
receiving the requested records, Anderson now appeals.
DISCUSSION AND DECISION
I. Mootness
As an initial matter, the Commissioners argue that insofar as Anderson concedes
that he received the information he requested, the merits of this appeal are moot with the
exception of Anderson’s request for attorney fees. An issue is considered moot when
there is no live case or controversy, and the parties lack a legally cognizable interest in
the outcome of its resolution or where no effective relief can be rendered to the parties.
Poulard v. Laporte Cnty. Elections Bd., 922 N.E.2d 734, 737 (Ind. Ct. App. 2010).
Nevertheless, even if an appeal is moot, we can still review it under the public interest
6
exception, which may be invoked when the issue is a question of great public importance
that is likely to recur. Id.The Commissioners acknowledge that Anderson presents issues that are both
novel and may arise again in other cases involving access to public records. Appellee’s
Br. p. 7. However, the Commissioners point out that government agencies have the
Public Access Counselor to assist them.
Anderson responds by emphasizing that this is an issue of first impression,
involving important legal issues stemming from the APRA. This fact alone makes this
issue a matter of “great public importance that is likely to recur.” Poulard, 922 N.E.2d at
737.
Anderson also contends that his appeal is not moot because there are still
unresolved legal issues such as whether or not his request was “reasonably particular.”
Indeed, Anderson argues that a definition of “reasonably particular” is of “upmost [sic]
importance.” Reply Br. p. 6. Because Anderson has presented us with an issue of first
impression, namely, whether his request was “reasonably particular” under APRA, we
will address the merits of Anderson’s appeal.
II. Reasonably Particular
Anderson argues that his requests to the Commissioners were “reasonably
particular” as required by Indiana Code section 5-14-3-3(a) and, therefore, his requests
should not have been denied, and the Commissioners should have been court ordered to
7
produce the records exactly as he requested them.4 The Commissioners counter that they
did not refuse to provide access to public records. Instead, they asked for more
information so that they could better facilitate Anderson’s request without incurring
unreasonable cost and expense.
Initially, we observe that the public policy behind the APRA is to provide the
public with full and complete information regarding the affairs of the government. See
I.C. § 5-14-3-1 (stating that “it is the public policy of the state that all persons are entitled
to full and complete information regarding affairs of the government . . . .”) However, to
request access to a public record, it must be described with “reasonable particularity.”
I.C. § 5-14-3-3(a)(1). The meaning of this phrase is the crux of the dispute between the
Commissioners and Anderson.
“Reasonable particularity” is not defined within the APRA; however, Indiana
Code section 5-14-3-1 states that “[t]his 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.” Recently, in Jent v. Fort Wayne Police Department, 973
N.E.2d 30, 33 (Ind. Ct. App. 2012), a case factually similar to the instant one, a panel of
this Court likened the reasonable particularity requirement to the discovery rules, stating
that “a requested item has been designated with ‘reasonable particularity’ if the request
4
Anderson’s first argument is actually that email correspondence is a public record within the definition
of the Indiana Code. Inasmuch as the Commissioners “assume for the sake of argument that the e-mails
in question are individually ‘public records’ under Ind. Code § 5-14-3-2(n),” we need not address this
issue. Appellee’s Br. p. 8.
8
enables the subpoenaed party to identify what is sought and enables the trial court to
determine whether there has been sufficient compliance with the request.”
It is noteworthy that while the Commissioners agree with Anderson that the Public
Access Counselor’s decision is not binding on the trial court or this Court, in the absence
of case law or adequate statutory authority, this Court should give considerable deference
to the opinions of the Public Access Counselor. The Commissioners point out that in
other areas of administrative law, “with respect to an agency’s interpretation of statutes
and regulations that [it] is charged with enforcing, such interpretation is entitled to great
weight . . . .” Austin v. Ind. Family & Soc. Servs. Admin., 947 N.E.2d 979, 982 (Ind. Ct.
App. 2011). Nevertheless, the Commissioners concur with Anderson that unlike other
cases under the Administrative Orders and Procedures Act, the trial court reviews an
opinion of the Public Access Counselor de novo. I.C. § 5-14-3-9.
Here, Hoage, the Public Access Counselor, defined “[p]articularity” as “the
quality or state of being particular as distinguished from universal.” Appellant’s App. p.
32. For example, a request for emails sent and received by a person in the last one
hundred days lacks the particularity required to satisfy the statute and is a “universal”
request. Id. at 31-33. Hoage also noted that records broadly involving a method of
communication such as email did not rise to the level of “reasonable particularity” so as
to compel disclosure. Id. at 33.
In reaching his conclusion, Hoage relied on prior opinions, inasmuch as this was
not the first time that a Public Access Counselor had addressed this issue. Additionally,
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Hoage suggested ways in which Anderson could modify his request noting that “a request
for all e-mail correspondence from Jane Doe to Jim Smith for a range of dates would be
reasonably particular,” whereas “a request for all e-mail correspondence to and from Jane
Doe for a range of dates is not reasonably particular.” Id. Instead, Anderson chose to file
suit.
The trial court again referenced Hoage’s opinion, approving the examples of what
would and would not be considered reasonably particular. Additionally, the trial court
stated that allowing requests such as Anderson’s would permit a “fishing expedition.”
Appellant’s App. p. 4.
Moreover, Anderson’s requests required that the Commissioners determine which
emails were truly public records and which were not. Consequently, even after the
Commissioners compiled the emails, they had to undergo a process to ensure that they
did not provide protected health information or other non-disclosable material. Tr. p. 53.
This process involved turning over the 9500 emails to Human Resources to be redacted,
after an IT employee had already spent ten hours and purchased new software acquiring
the emails. Id. at 95, 98.
Nevertheless, Anderson points out that the “reasonably particular” requirement
exists so that the government agency knows what is being requested from the agency.
Anderson asserts that the strongest evidence that his requests were reasonably particular
is that the Commissioners provided the information that Anderson requested without
Anderson modifying his initial requests.
10
Although the Commissioners ultimately spent the time and expense compiling and
reviewing 9500 emails, they did not necessarily have a legal obligation to do so, and, as
argued above, the Public Access Counselor’s opinions state the opposite. To be sure, the
fact that the Commissioners provided the information exactly as Anderson requested it
does not define the APRA. Indeed, we agree with the Public Access Counselor’s opinion
that Anderson’s requests were not reasonably particular under the APRA, and the
Commissioners were under no legal obligation to provide to him the information that he
requested. Consequently, this argument fails.
III. Costs and Attorney Fees
Anderson maintains that he has substantially prevailed and that awarding him
attorney fees, court costs, and all other reasonable costs of litigation is mandatory. 5
Indiana Code section 5-14-3-9(i) provides that “[i]n any action filed under this section, a
court shall award reasonable attorney’s fees, court costs, and other reasonable expenses
of litigation to the prevailing party if . . . the plaintiff substantially prevails; or [] the
defendant substantially prevails and the court finds the action frivolous or vexatious.”
When the requirements of the statute have been met, the award of attorney fees is
mandatory. Indianapolis Newspapers v. Ind. State Lottery Comm’n, 739 N.E.2d 144,
156 (Ind. Ct. App. 2000).
5
Anderson argues that he is entitled to both trial attorney fees and costs and appellate attorney fees and
costs. In the Commissioners’ brief, they state that “[f]or purposes of this appeal only, the Commissioners
assume for the sake of argument that a prevailing party may obtain an award for appellate attorney fees as
well.” Appellee’s Br. p. 17 n.9. However, the Commissioners point out that if this Court reverses the
trial court’s denial of attorney fees and costs, remand is appropriate so that the trial court can recalculate
attorney fees for Anderson’s appeal.
11
Although the statute fails to define “substantially prevails,” it is unmistakable that
Anderson did not substantially prevail in the instant case. As we concluded above,
Anderson’s requests for information from the Commissioners were not reasonably
particular. Furthermore, Anderson received all of the information as he requested it in
what must have been a reasonable time frame because he did not allege that it was
unreasonable. Anderson was given notice that he would receive the information he
requested before the trial court’s hearing on the matter. Accordingly, we cannot say that
Anderson substantially prevailed “[i]n an action filed under this section.” I.C. § 5-14-3-
9(i). Consequently, this argument also fails.
The judgment of the trial court is affirmed.
BARNES, J., and BROWN, J., concur.
12