Menge v. Indiana University

July 3, 2020

STATE OF INDIANA In the Monroe Superior Court, July 2, 2020

MARGARET MENGE, Plaintiff, v. INDIANA UNIVERSITY and IU BOARD OF TRUSTEES, Defendant.

COMPLAINT

Margaret Menge is filing this complaint against Indiana University for its violation of the Indiana Access to Public Records Law. She is seeking declaratory relief. She states and alleges the following:

  1. She is a professional journalist working in the state of Indiana and also an adjunct scholar with the Indiana Policy Review.
  2. Indiana University, the defendant, is an agency of the State of Indiana. It is domiciled in Bloomington, in Monroe County, Indiana.
  3. The IU Board of Trustees is the governing body of Indiana University, and is also domiciled in Bloomington, in Monroe County, Indiana.
  4. As a public university, Indiana University is subject to the Indiana Access to Public Records Act (APRA, Indiana Code 5-14-3)
  5. On June 18, 2020, Margaret Menge submitted a public records request to Indiana University through the university’s online portal.
  6. The request was for “emails from and to John Wilkerson, Asst. Vice President for International Services, that contain the words China or Chinese or any code word or abbreviation that is used to denote international students from China, for the period March 1, 2020 to June 18, 2020.”
  7. On June 19, the plaintiff received an email message from IU’s Office of the General Counsel, from Attn. Abby Daniels. In the message, Ms. Daniels stated that the request did not meet the “reasonable particularity” standard of the Access to Public Records Act because it did not specify both the sender AND recipient of the emails being requested.
  8. The plaintiff replied that the request did in fact meet the “reasonable particularity” standard as it listed specific key words, a date range that is approximately 3 ½ months, and one party to the emails. Further, in the interests of proceeding with the fulfillment of the request, the plaintiff narrowed the request to only emails FROM Wilkerson, not to him.
  9. The defendant again denied the request, writing in a June 22 email that even though narrowed, the request still did not meet the “reasonable particularity” standard in the law because both the sender and recipient of emails were not specified.
  10. There is no requirement in the Access to Public Records Act that a person requesting a public record name both the sender and recipient of an email. There is, in fact, no requirement that either a sender or recipient be named. Such a requirement is entirely fictional, made-up, contrived, and has no basis in the law.
  11. The “reasonable particularity” standard comes from this section of the APRA: 

IC 5-14-3-3 Right to inspect and copy public agency records or recordings; electronic data storage; use of information for commercial purposes; contracts

     Sec. 3. (a) Any person may inspect and copy the public records of any public agency during the regular business hours of the agency, except as provided in section 4 of this chapter. A request for inspection or copying must:

(1) identify with reasonable particularity the record being requested; and

(2) be, at the discretion of the agency, in writing on or in a form provided by the agency.

12. Although not defined by APRA, “reasonable particularity” can first, and quite obviously, be understood to mean “not precise” or “not exact” – but that which is only “reasonably” particular – somewhat particular.

13. Also, the preamble to the Public Records Act says: “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.”

14. Interpreting “reasonable particularity” in light of the moderating adjective “reasonable” and the moderating adverb “liberally” cannot possibly lead one to conclude that the law means that such precise information must be submitted in order for a public agency to make a public record available.

15. The Indiana Court of Appeals addressed the issue of “reasonable particularity” in Jent v. Fort Wayne Police Dept., 973 N.E. 2d 30 (2012). In this case, the court said: “Whether a request identifies with reasonable particularity the record being requested turns, in part, on whether the person making the request provides the agency with information that enables the agency to search for, locate, and retrieve the records.”

16. In Jent, the requestor had asked for: “Daily incident report logs of crimes committed from January 1st, 2001 through December 8th, 2005 containing the crimes of abduction and sexual assault and/or attempted abduction and attempted sexual assault with the victims describing the perpetrator as a Hispanic male with a tattoo of a rose and green stem on the left arm or side and/or if the victim was taken to an abandoned house and/or placed in a van during the commission of the crime.”

17. The agency had responded: “The software will not facilitate the production of any kind of list with the parameters you specified.”

18. In this case, there is no such issue. In all major email systems, including the one used by the defendant, the Inbox and Sent folder of the email account of an employee can be searched using a date range and key words. This should take mere minutes, or perhaps less than one minute.

19. In a 2013, case, Seth Anderson vs. the Huntington County Board of Commissioners, the court ruled that a request for emails that named only one party to an email exchange, four total employees, no keywords and a four-month date range was not “reasonably particular” because a county employee spent ten hours and had to purchase new software to retrieve 9500 emails responsive to the request.

20. In this case, the defendant did not state that the search parameters resulted in a large volume of records — only that the plaintiff’s request “does not identify with reasonable particularity records that enable IU to “search for, locate, and retrieve the [requested] records.”

Conclusion:

The APRA states emphatically 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.”

Preventing disclosure of emails that don’t state both the sender and receiver and key words and a very limited time frame would certainly prevent citizens from access to “full and complete information regarding the affairs of government…” and would in fact make it possible for public agencies and entities to shield almost all of their activities, policy-making and affairs from public view.

As such, any such requirement, which has no basis in law or in past court decisions, would have the effect of neutering the Indiana Access to Public Records Act and rendering it almost useless to those seeking information about their government.

Plaintiff seeks declaratory relief, and also court costs and other just and proper relief.

Respectfully submitted

Margaret Menge



Comments...

Leave a Reply