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

UPDATED WITH AUDIO
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?