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 Banner Awaits Access Counselor’s Ruling

February 4, 2009 - The Banner has asked the state public access counselor to decide if the Charles A. Beard Memorial School Corporation has once again violated Indiana’s Access to Public Records Act by withholding public records the newspaper requested.

In a formal complaint filed Jan. 14, The Banner detailed CAB’s failure to provide the newspaper with public records sought in requests submitted to the school corporation in November and, again, earlier this month. In both instances, CAB Superintendent Gary Storie declined to provide the records, saying The Banner had not been specific enough in identifying the records it wanted.

The records which were not been provided were e-mails sent between Storie and members of the Charles A. Beard School Board since Sept. 1. While the request also asked for other, non-electronic correspondence as well, Storie has told The Banner that the only correspondence other than his weekly reports to the board -- copies of which he has given to the newspaper -- were in the form of e-mails.

In a letter dated Nov. 24, Storie asked The Banner to be more specific in terms of the requested e-mails. “In other words,” he wrote, “is there a particular topic that you are interested in, or an event that happened on a specific date?” He noted that the state’s public access laws require persons requesting records to identify them with reasonable particularity.

The Banner explained to Storie that there was no way to be any more specific with respect to the record request. Rather than wanting to simply see only those e-mails and correspondence dealing with a particular event or topic, The Banner wanted to see all of those Storie had sent board members since Sept. 1.

On Jan. 5, The Banner submitted a second request to Storie. Unlike the first request, which simply dealt with e-mails Storie had sent board members, the new request also included those that board members had sent him. The new request also extended the time period covered by the request to go from Sept. 1 through a date no earlier than seven days before CAB provides The Banner with the requested records.

In the complaint filed with Public Access Counselor Heather Neal, Eric Cox, The Banner’s owner and publisher, said that both the Nov. 19 and Jan. 5 record requests had identified the records sought with “reasonable particularity.” He noted that The Banner had not asked to see every e-mail or correspondence Storie had ever sent, but, instead, had chosen to limit its requests to specific time periods and restrict them to include only certain senders and recipients.

“Certainly, if there was any way The Banner could be more specific, or more reasonably particular, with our requests, we would do it,” Cox wrote. “As it is, however, that’s simply not possible.

“The records we wish to see, which are all now covered by the Jan. 5 request, have nothing to do with any particular topic or the events of any particular date,” Cox continued. “Instead, our interest is in seeing public records consisting of e-mails and other correspondence sent between CAB’s superintendent and school board members between two easily identifiable dates covering (for now) less than five months. With that in mind, our ... record requests were both as reasonably particular as they could be.”

The office of the PAC sent a letter to Storie notifying him of The Banner’s complaint, and asked him to submit any response on behalf of the school corporation by Jan. 31. Neal is expected to issue a formal advisory opinion regarding this matter by Feb. 13.

At the Jan. 20 CAB School Board meeting, Storie advised members The Banner had filed a complaint over his refusal to provide the records. While he said he initially believed The Banner’s record request had not been particular enough in terms of identifying the requested records, he told the board that he now believed “we probably need to turn these e-mails over.”

Storie gave board members copies of the requested e-mails at the meeting, along with copies that had proposed redactions he recommended making to black out some material. He asked the board to look over the documents and to let him know what they think about the issue.

Last Friday, Storie provided The Banner with 106 pages of e-mails said to be responsive to The Banner’s record request. One e-mail was redacted pursuant to a federal statute that protects a student’s privacy regarding educational matters, and two others had small portions redacted, citing a state statute that allows public agencies discretion to withhold certain portions of an employee’s personnel file.

In his Jan. 30 weekly memo to board members, Storie said, “After reading some of the PAC’s opinions pertaining to similar complaints, I don’t think I would have prevailed in this case.”

“Please note,” Storie continued in the memo,” it is not that I intend to purposefully keep matters from the media or public, it’s just that I thought as local government officials you should have some time to consider ideas, problems, and other issues as well as be able to communicate your opinions to me and others before such matters become open for public review. I hope my meetings with you individually each month will help facilitate some of this communication. E-mail is certainly fine with me, but just know that in doing so creates a public record which will subject to such records requests.”


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