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 State Agency Says CAB Violated Law . . . Again

July 11, 2007 - The Charles A. Beard Memorial School Corporation has once again been found to have violated state laws governing access to public records.

In an advisory opinion issued June 18, the state's public access counselor at that time, Karen Davis, said CAB violated Indiana's Access to Public Records Act by not giving The Banner a public record that was responsive to two record requests the newspaper submitted in late January and early February.

The record in question was an e-mail CAB's former business manager, Amanda Zurwell, had sent to then Superintendent David McGuire and his administrative assistant, Jena Schmidt, on January 12. In the e-mail, Zurwell mentioned a criminal investigation involving her in Brown County, where she had previously worked before coming to CAB, and she questioned McGuire about a request that she resign.

In its record requests, the first of which was sent to CAB on January 22, The Banner had asked for, among other things, certain written correspondence sent either from or to Zurwell. When CAB's response didn't include any of Zurwell's e-mails, The Banner followed up on February 2 with a second request that specifically requested e-mails.

February 7, five days after The Banner's second request, CAB's Schmidt issued a written response advising The Banner that "all electronic e-mails were lost" in a recent technology upgrade. When The Banner filed a formal complaint with the PAC in early March alleging CAB had violated the APRA by failing to preserve the e-mails and protect them from loss, alteration, mutilation or destruction, CAB's attorney, Michael Wallman, claimed none of the lost e-mails had been responsive to the newspaper's record requests.

In an opinion issued in early April addressing The Banner's first complaint, Davis was unable to say for certain whether CAB had violated the law when it allegedly lost Zurwell's e-mails. Because the specific nature of the lost e-mails could not be determined, all Davis could say was that CAB was required to protect these records, and that the APRA would have been violated if they were destroyed in a manner other than that prescribed by law.

Despite CAB's claims that all of Zurwell's e-mails had been lost, The Banner learned in early May that this was not true. Through court records and conversations with Henry County Prosecutor Kit Crane, The Banner discovered that CAB had actually given an investigator from the Henry County Sheriff's Dept. a copy of Zurwell's January 12 e-mail to McGuire and Schmidt on February 6 - just four days after The Banner had filed its second record request and one day before Schmidt told The Banner that all e-mails had been lost in a technology upgrade.

On May 8, The Banner served CAB with yet another record request, this one specifically asking for a copy of Zurwell's January 12 e-mail to McGuire and Schmidt. Less than 30 minutes after this record request was dropped off at CAB's Central Office, McGuire hand delivered a copy of the e-mail to The Banner's office, offering an apology and claiming the failure to provide the record in response to the earlier requests had been an unintentional oversight.

The Banner filed another complaint with the PAC the following week, alleging CAB violated the APRA by not providing a copy of Zurwell's January 12 e-mail in response to its January 22 and February 2 record requests. The Banner also claimed CAB violated the law by not disclosing the existence of the e-mail or offering a valid reason for its failure to turn over a copy, and by taking an unreasonable amount of time to provide the record.

One week later, after learning of The Banner's new complaint, McGuire paid another visit to The Banner's office, saying he had to offer another apology. Producing a copy of a letter Schmidt wrote to the PAC in response to the latest complaint, McGuire said withholding the e-mail had not been an oversight after all. Instead, he said it had not been given to The Banner because CAB believed the e-mail was an investigatory record of a law enforcement agency.

CAB's latest rationale for why it didn't turn over the e-mail in response to The Banner's earlier record requests didn't go over well with Davis. While the APRA does give public agencies the discretion to withhold "investigatory records of law enforcement agencies," Davis, whose term as PAC ended June 30, said that exception was not applicable here.

"It is my opinion that a school corporation is not a law enforcement agency under this definition," Davis wrote in her opinion. "Therefore, the e-mail retained by the CAB was not an 'investigatory record of law enforcement agencies.'"

Davis also took issue with the fact that CAB never even disclosed the existence of Zurwell's January 12 e-mail when it responded to The Banner's January 22 and February 2 record requests. She said this also violated the law.

"The public agency's obligation to put its denial in writing includes the obligation to state that the record exists," Davis said. "In other words, even though a public record is exempt from disclosure, the public agency is not permitted to deny the record's existence."

Here, where there was no valid reason for not providing The Banner with a copy of the e-mail, Davis said CAB had "no authority to withhold" it. As for the more than three months it took for CAB to finally comply with record requests, Davis said the school corporation "should have produced this record by the date that the CAB was able to produce it for the Henry County sheriff's detective, which was after The Banner's second request for records."

CAB's current business manager, David Bundy, provided school board members with copies of the PAC's most recent opinion days after it was issued. During the board's July 2 meeting, its first since Davis issued her opinion, board members did not discuss this matter.


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