Daniel Brewington v. Dearborn Superior Court II, Judge Sally McLaughlin, Judge Brian Hill, Court Reporter Barbara Ruwe (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 29 2020, 10:53 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Daniel Brewington Curtis T. Hill, Jr.
Dublin, Ohio Attorney General
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daniel Brewington, July 29, 2020
Appellant-Plaintiff, Court of Appeals Case No.
19A-PL-3047
v. Appeal from the
Dearborn Superior Court
Dearborn Superior Court II, The Honorable
Judge Sally McLaughlin, Donald J. Mote, Special Judge
Judge Brian Hill, Trial Court Cause No.
Court Reporter Barbara Ruwe, 15D01-1702-PL-13
Appellees-Defendants
Vaidik, Judge.
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Case Summary
[1] Daniel Brewington sued Dearborn Superior Court II and other defendants,
alleging that they failed to give him the complete audio of the grand-jury
proceedings in his criminal case in violation of the Indiana Access to Public
Records Act (APRA). Both Brewington and the defendants moved for
summary judgment, and the trial court entered summary judgment in favor of
the defendants. Because Indiana law only allows the release of a transcript of
the testimony of a grand-jury witness, and not audio, we affirm the trial court.
Facts and Procedural History
[2] In 2011, a Dearborn County grand jury indicted Brewington on six offenses. To
help him prepare for trial, Brewington was given a transcript of the grand-jury
proceedings. A jury trial was held in Dearborn Superior Court II before Special
Judge Brian Hill, and the jury convicted Brewington of five of the six charges.
On appeal, the Indiana Supreme Court affirmed three of Brewington’s
convictions. Brewington v. State, 7 N.E.3d 946 (Ind. 2014).
[3] In January 2016, Brewington submitted an APRA request to Dearborn Superior
Court II, asking for an audio recording of the grand-jury proceedings in his
criminal case. Appellant’s App. Vol. III p. 7. The court denied Brewington’s
request. Id. at 11. In February, Brewington submitted an amended APRA
request to the court, again seeking an audio recording of the grand-jury
proceedings in his criminal case. The next month, before receiving a response to
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his amended request, Brewington filed a formal complaint with the Office of the
Public Access Counselor.
[4] In April 2016, the Public Access Counselor issued an advisory opinion that
“because the transcript of the grand jury proceedings ha[d] previously been
provided to [Brewington], a copy of the audio recordings of said proceedings
should be released as well.” Id. at 66. In response to the Public Access
Counselor’s advisory opinion, the court ordered the court reporter to “prepare a
compact disc of audio recordings of the Grand Jury proceedings[.]” Id. at 68.
Brewington received an audio recording but believed it was incomplete. In
May, Brewington filed an amended request for “complete unedited copies of
the grand jury audio” in his criminal case, which the court denied. Id. at 70.
[5] In February 2017, Brewington filed a civil complaint under APRA in Dearborn
Superior Court I against Dearborn Superior Court II/Judge Sally McLaughlin
(the sitting judge), Judge Hill (the special judge in his criminal case), and
Barbara Ruwe (the court reporter in Superior Court II) “for failing to disclose
public records as required by law,” specifically, “the entire audio record from
the grand jury proceedings” in his criminal case. Appellant’s App. Vol. II p. 76.
Brewington sought (1) a declaration that the defendants violated APRA, (2) an
injunction requiring the defendants to “disclose without alteration or redaction”
an audio recording of the grand-jury proceedings in his criminal case, and (3)
attorney’s fees and costs. Id. at 76-77.
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[6] In March 2017, Ruwe moved for judgment on the pleadings, which the trial
court granted. In April, Brewington filed a motion for summary judgment. The
remaining defendants (hereinafter, “Defendants”) then filed a cross-motion for
summary judgment, alleging that Brewington “already received the records he
requested and is not entitled to the records he . . . further requests.” Appellant’s
App. Vol. III p. 4. Finding that Brewington was not entitled to an audio
recording of the grand-jury proceedings under APRA, the court denied
Brewington’s motion and granted Defendants’ cross-motion.
[7] Brewington now appeals.
Discussion and Decision
[8] Brewington appeals the trial court’s grant of Defendants’ cross-motion for
summary judgment. We review motions for summary judgment de novo,
applying the same standard as the trial court. Hughley v. State, 15 N.E.3d 1000,
1003 (Ind. 2014). That is, “The judgment sought shall be rendered forthwith 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 a judgment as a matter of
law.” Ind. Trial Rule 56(C).
[9] Under APRA, “Any person may inspect and copy the public records of any
public agency during the regular business hours of the agency,” subject to
several exceptions. Ind. Code § 5-14-3-3(a). One exception is that a public
agency may not disclose records “declared confidential by state statute.” Ind.
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Code section § 5-14-3-4(a)(1). Indiana Code 35-34-2-4(i) provides that grand-
jury proceedings are secret and generally should not be disclosed:
Grand jury proceedings shall be secret, and no person present
during a grand jury proceeding may, except in the lawful
discharge of his duties or upon written order of the court
impaneling the grand jury or the court trying the case on
indictment presented by the grand jury, disclose:
(1) the nature or substance of any grand jury testimony; or
(2) any decision, result, or other matter attending the
grand jury proceeding.
However, any court may require any person present during a
proceeding to disclose the testimony of a witness as direct
evidence in a prosecution for perjury.
See also Hinojosa v. State, 781 N.E.2d 677, 680 (Ind. 2003) (“[T]he general rule
regarding grand jury transcripts is that they be kept secret.”). Indeed, it is a
criminal offense to knowingly or intentionally disclose information acquired in
a grand-jury proceeding unless compelled by law. Ind. Code § 35-34-2-10(a);
Hinojosa, 781 N.E.2d at 680. However, the legislature created an exception to
the general rule of secrecy by granting trial courts the discretion to release a
“transcript” of a grand-jury witness’s testimony in the following narrow
circumstances:
(1) for the official use of the prosecuting attorney; or
(2) upon order of:
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(A) the court which impaneled the grand jury;
(B) the court trying a case upon an indictment of the grand
jury; or
(C) a court trying a prosecution for perjury;
but only after a showing of particularized need for the transcript.
I.C. § 35-34-2-10(b).
[10] According to the above statutes, the general rule is that grand-jury proceedings
are confidential and therefore cannot be disclosed under APRA. Although there
are narrow circumstances under which a transcript of a grand-jury witness’s
testimony may be disclosed, the statutes do not provide for the disclosure of
audio. But Dearborn Superior Court II, in response to the Public Access
Counselor’s advisory opinion, ordered the court reporter to give Brewington an
audio recording of the grand-jury proceedings. However, that does not change
our conclusion that these statutes do not authorize the disclosure of audio.
Accordingly, Brewington is not entitled to any additional audio he believes
exists from the grand-jury proceedings in his criminal case under APRA. We
therefore affirm the trial court’s grant of Defendants’ cross-motion for summary
judgment.1
1
Brewington filed at least two motions to disqualify the Office of the Attorney General in the trial court,
which were denied. On appeal, Brewington says we should “consider the disqualification” of the Office of
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[11] Affirmed.
Baker, J., and Bailey, J., concur.
Attorney General. Appellant’s Br. p. 33. Brewington, however, has waived this argument for failing to
support it with cogent reasoning and citation to authorities. See Ind. Appellate Rule 46(A)(8)(a).
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