Another Denial of Access to Court Records

The case of Stuart Showalter v County of Boone et al had been scheduled to go try trial today but has been delayed until at least February 2011 because of a scheduling issue involving special judge William Hughes of the Hamilton Superior Court III. The case centers around a dispute that I have with the Boone Superior Court II as to whether I am allowed by statute to use my own recording equipment to make a copy of a court recording while it is played for me in a supervised setting.

As this case approaches it's third year another case is in the works. This time it involves Judge Robert Aylsworth of the Warrick Superior Court II. The requestor had sought access to court recordings in her divorce proceeding but was denied. Her complaint was received by the Public Access Counselor [PAC] on 04 November 2010 and docketed as complaint 10-FC-276.

Unless specifically barred by a court order, usually because of the testimony of a minor child or other sensitive information, domestic relations proceedings are open to the public. In this case no order had been issued sealing the records of the proceedings.

In my case the County of Boone and I have already stipulated and submitted to the court that "The question for the Court to decide is whether the Boone Superior Court II violated the Access to Public Records Act by allowing Showalter to only listen to the recording, rather than providing him a copy of the recording or allowing him to make such a recording using his own equipment." This is supported by the opinion of the PAC, statute and case law.

In 10-FC-276 the requestor complains that when she made a verbal request for access she was told that she may not listen to the recordings because she is 'not an officer of the court.' When she filed a written request with the court she was informed, verbally, that the "tapes of the hearings belonged to the court reporter not the court." and further that "They are not part of public access."

However it is well established that court recordings are public record. In her request she had cited the particular statutes stating that court recordings are part of the public record:
IC 5-14-3-2(m) defines a "Public agency" as "Any board, commission, department, division, bureau, committee, agency, office, instrumentality, or authority, by whatever name designated, exercising any part of the executive, administrative, judicial, or legislative power of the state." [emphasis added]
IC 5-14-3-3(b) states that " A public agency may not deny or interfere with the exercise of the right stated in subsection (a). The public agency shall either:
(1) provide the requested copies to the person making the request; or
(2) allow the person to make copies:
(A) on the agency's equipment; or
(B) on the person's own equipment."
The Court has also violated the Act by not providing a written denial stating who made the denial and the statutory provisions supporting the denial. This is also found in statute.

IC 5-14-3-9(c) If a request is made orally, either in person or by telephone, a public agency may deny the request orally. However, if a request initially is made in writing, by facsimile, or through enhanced access, or if an oral request that has been denied is renewed in writing or by facsimile, a public agency may deny the request if:
        (1) the denial is in writing or by facsimile; and
        (2) the denial includes:
            (A) a statement of the specific exemption or exemptions authorizing the withholding of all or part of the public record; and
            (B) the name and the title or position of the person responsible for the denial.

It is clear from these circumstances that the Warrick Superior Court II has unlawfully denied a citizen of the State of Indiana the right to access the public records of the court. This may be out of ignorance of the law but regardless, there is no excuse for this, especially in light of the fact that the requestor cited the law in the written request.

The Indiana Access to Public Records Act starts with a statement of purpose:
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.

If you feel you have been wrongly denied access to a public meeting or records and need assistance in obtaining the records please feel free to contact me.

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©2010 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.