Monday, March 16, 2015

If At First You Don't Succeed With A Public Records Request, Try and Try Again

Advance Indiana exclusively reported in January about a citizen complaint concerning an IMPD captain who was allegedly driving his police cruiser erratically last December and complaints internally that a subsequent investigation of the officer suggesting he was under the influence of alcohol got covered up by the highest levels within the department. As a result of Advance Indiana's reporting, Lori White, head of the Citizens Police Complaint Office, confirmed last month that an internal affairs investigation had been launched to look into the matter.

Attempts made by Advance Indiana to obtain what should be public records regarding the incident were met with stonewalling by IMPD and the city's Office of Corporation Counsel. Both claimed computer automated dispatch ("CAD") records regarding the incident were "investigatory" records exempt from public disclosure. IMPD also insisted no police report existed for the matter despite IMPD sources telling Advance Indiana that both the reporting citizen and the police captain were questioned about the matter, and that the police captain had been required to perform a blood alcohol test--albeit many hours after the incident was first reported.

A complaint was filed with the Public Access Counselor after Samantha DeWester in the corporation counsel's office denied Advance Indiana's request for the CAD record. After earlier blog reports mentioned the denial of the CAD record, Advance Indiana's Gary Welsh was contacted by numerous individuals who claimed they had no problem in obtaining CAD records, as well as audio recordings of 911 calls and dispatches related thereto. One former police officer who regularly obtains these records advised us to put our request in writing to the Marion Co. Sheriff's Department, which we did.

Over the weekend, the Public Access Counselor's Office issued an informal opinion (15-FC-42) in response to our complaint. Despite Advance Indiana advising the PAC about the known availability of these same records upon request made to the Marion Co. Sheriff's Department, the Public Access Counselor bought the corporation counsel's argument hook, line and sinker and sided with Ms. DeWester in denying us access to the CAD record in question. Here's the Public Access Counselor's analysis supporting the denial of the requested public record:
The public policy of the APRA states that “(p)roviding persons with 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.” See Ind. Code § 5-14-3-1. Indianapolis Metropolitan Police Department (IMPD) is a public agency for the purposes of the APRA. See Ind. Code § 5-14-3-2(n)(1). Accordingly, any person has the right to inspect and copy IMPD’s public records during regular business hours unless the records are protected from disclosure as confidential or otherwise exempt under the APRA. See Ind. Code § 5-14- 3-3(a).
At the outset, it should be noted the only records in question which were actually requested were the CAD records. Counsel for the IMPD is correct that information obtained through the IDACS system is confidential pursuant to agreements which local law enforcement agencies have with the Criminal Justice Information System (“CJIS”). CJIS is regulated by the Code of Federal Regulations pursuant to Sections 501 and 524 (b) of the Omnibus Crime Control Act and Safe Street Act of 1968, as amended by the Crime and Control Act of 1973, Public Law 93-83, 87 Stat. 197, 42 U.S.C. 3701, et. seq. (Act), 28 U.S.C. 534, and Public Law 92-544, 86 Stat. 1115. Because IDACS information is confidential under Federal Law, so also is it confidential under Ind. Code § 5-14-3-4(a)(1).
You also contend the information should be contained in a “daily log” under Ind. Code § 5-14-3-5(c). If the incident involved a suspected crime, accident or complaint, the log or record of the investigation under that particular statute should be made available to you. To my knowledge, you have not made a request for that information; only the CAD was requested.
For the foregoing reasons, it the Opinion of the Public Access Counselor the IMPD did not violate the Access to Public Records Act.
Well, eat your heart out, Ms. DeWester. The Marion County Sheriff's Department produced the CAD report you claim cannot be disclosed, which you can view by clicking here, as well as the lengthy audio recordings of the 911 calls and related dispatches. The report clearly identifies Austin Joseph as the driver of the a silver BMW who phoned 911 to complain about the police officer's erratic driving of a white Police Interceptor while south bound on I-465 near Shadeland. Mr. Joseph was initially transferred by the 911 operator to the Indiana State Police before having the call handed back by ISP to local police. The recorded 911 call shows that Mr. Joseph doubted whether the person driving the car could actually be a police officer because of the erratic manner in which the vehicle was being operated and  speeds topping 90 mph at one point. The dispatcher told Mr. Joseph she was unable to identify the driver of the white Police Interceptor as a police officer after he reported his license plate number to her. Mr. Joseph wondered out loud why the person driving the car didn't stop him if he thought he was doing anything wrong.

At one point, Mr. Joseph is heard telling the dispatcher that the driver of the police car turned on his flashers to intimidate Mr. Joseph and then even tried to lose him by attempting to exit off of I-465 onto Shadeland before sharply returning back to I-465 and cutting him off before later exiting onto I-70 heading west towards downtown. We even hear the captain responding to a call from a dispatcher whereupon he starts complaining about the nut who has been tailing him. There seems to be some confusion between the dispatch operator and one of the responding police officers over whether he should be making a traffic stop of Mr. Joseph or the police captain. Stop Mr. Joseph, they were instructed, who had already pulled his car over and was awaiting a police officer to arrive after following the officer downtown. When a police officer asked about stopping the police captain instead, the dispatcher responded, "I'm not going to dignify that [with a response]" A police officer later confirmed to the dispatcher that the captain had shown up for the roll call at the downtown district.

We'll be charitable and not name the police captain for now in hopes that the ongoing internal affairs investigation will get to the bottom of this matter and not simply sweep the matter under the rug. Many police officers within the department expect as much, and the public deserves a full explanation of what transpired on the night of December 20, 2014, including: why there was no police incident report prepared based on the well-documented 911 call Mr. Joseph made and his subsequent questioning by police; who, where and when was a blood alcohol test administered on the captain, if any; which senior persons in a position of command that evening were involved in the investigation, what they reported to their superiors and what they were told to do in response by their superiors; and whether any IMPD rules or procedures or state laws were broken by any of those involved in this incident.

UPDATE: You can listen to a shortened version of the audio recording of the 911 call and police dispatch records by clicking here. The audio recordings identify IMPD Capt. Phil Burton as the officer whose driving actions prompted Mr. Joseph to place the 911 call and follow Capt. Burton from the City's northeast side to downtown. You can hear the call the dispatcher made to Capt. Burton at the 5:20 mark in the audio recording. Notice the confusion over the identify of the officer, presumably from another unrecorded call. The dispatch operator referred to the officer in queston as Adam 3, who I am told is actually Capt. Joe Finch. How was Capt. Burton confused with Capt. Finch when he had nothing to do this incident? Internal affairs has had more than a month to investigate this incident. There's no point in holding back any more. Will the Indianapolis news media continue to ignore this story?


Anonymous said...

Will IMPD cover this up? Why was it (as AI reported) that the determination was made to terminate the Captain until the Chief learned about the race of the employee????? -Was that related to The Chief of Police former position as President of the Vangard Justice Society, that protects black officers???

"Corruption is as Corruption does!"

-The Democrat Machine

P. S. Does it appear that the high ranking officer got to that rank only by virtue of his race & political favors granted to him? Even after he disgraced click here: "">The City as Commander of Traffic during a motivational speaker event?

Anonymous said...

Indiana Code § 5-14-3-5(c) provided all of Indiana the right to know that there was an IMPD Command Official accused by a citizen of Driving A Police Vehicle While Intoxicated!

This should be prima facie public information! Furthermore: Why didn't the State Police investigate this??? They were the proper neutral authority with judisdiction.

It appears that Straubification has influenced the Chief of Police that the Infamous Frank G. Straub brought here! Racial preference appears obvious.

Anonymous said...

What's Samantha DeWester going to do when you get her disbarred?

She messed up pretty big, and she needs to be out of her public job and lose her public license, because she sure has violated her duties to the public.

Gary R. Welsh said...

Are you kidding, anon. 9:17? She'll get another award from the bar association for a job well done. This is Indiana, after all.

Anonymous said...

"We'll be charitable and not name the police captain for now"


It's news. It's public record.

You're a journalist in possession of newsworthy public information.

You have a duty to report it. If you don't, you're no better than the Star.

Gary R. Welsh said...

Why hasn't Jack Rinehart or Russ McQuaid reported on it? They've ignored this story for months while putting out press release after press release for the department. Have you badgered them?

Anonymous said...

They're idiots. I don't read them. I read this site because it's supposed to be different and better than the Indianapolis Pravda.

It's so damn hard to find anything I can trust in this Communist-Bloc city.

I don't want to be in a position where I'm hoping, day after day, that today will finally be the day that the news releases the facts.

Anonymous said...


Bisard, Captain Phil Burton....what is next?

Anonymous said...

Thanks anon 10:09, I was wondering when someone was going to tell us who that capt. was.

LamLawIndy said...

Then there's this:

[R]emoves the requirement that a local government awarding a public works contract
to a bidder other than the lowest bidder must state in its minutes or memoranda the factors used to determine the bidder that is awarded the contract.

Eric Morris said...

I just looked up rank structure and captain looks like middle mgt. What is salary range? What happened to Joseph after he pulled over? What did cops discuss with him? Did they thank him for his service, give him a warning, ticket, etc.? How long has you had record from sheriff? Were you just waiting with it to expose the crappy attorney from the PAC? If so, well played!

Gary R. Welsh said...

As fate would have it, Eric, the PAC's opinion arrived in my inbox on Saturday, while the Sheriff's Department response came on Monday. The PAC was advised of the pending Sheriff's department request. It chose not to wait and see how that response was handled.

C. Roger Csee said...

As I recall, Burton is another one of those "highly trained and qualified" deputy sheriff's that came as part of the CONsolidation.

Anonymous said...

Jack Rinehart and Russ McQuaid have either become lazy reporters or sold us out. Once upon a time, they would have been all over a story like this.

Anonymous said...

Haha.....that's the best description of it yet -- CONsolidation! Probably should make it most of the trouble makers have bore the county badge & now are dragging IPD down.

Moral in dept is low......and this is one gleaming example why -- look what you get covered up if you are the right color. It's not a "one time" exception....there's a lot of this crap going on. Those in the dept knew of this within hours of it happening....they are still waiting for the "right" thing to be done. (They will always be waiting!!!)

Ohhhh speaking of crap....anyone know about the dark officer who was drunk driving a few years back, hit a phone pole & then capped his pants? Well even after that was covered up, his affairs with officers in the dept and atleast one STD, he's been promoted and is someone the dept puts on the news for you to see/listen to. See, how punishments....I mean rewards are given?
Sad for the good guys & gals actually out there sober, working and doing all with dignity who get nothing but bad leadership as their reward.

It's time people began asking a lot more questions of those "in charge".

Sir Hailstone said...

>>Jack Rinehart and Russ McQuaid have either become lazy reporters or sold us out<<

They can only do what their bosses at Scripps and Chicago Tribune respectively tell them to do... unfortunately.