Gallagher v. Marion County Victim Advocate Program, Inc.

401 N.E.2d 1362, 74 Ind. Dec. 637, 1980 Ind. App. LEXIS 1371

• Court: Indiana Court of Appeals
• Decided: March 24, 1980
• Docket: No. 2-777-A-292
• Status: Published

Opinions

YOUNG, Judge.

The Marion County Victim Advocate Program, Inc. [MCVAP] brought this mandamus action in the Marion Superior Court to compel access to certain Indianapolis Police Department reports known as DHC’s.¹ The DHC’s are reports made by an officer who is called to the scene of a crime, accident or other incident which detail the location, time and description of the incident and include the names of any victim, witness or suspect.

MCVAP is a private Indiana corporation the sole purpose of which is to aid the victims of violent crime. From March, 1974 to February, 1976 MCVAP was provided copies of DHC’s which served as a source of names and addresses of crime victims in the Marion County area. Informational letters were sent to these victims offering the assistance of MCVAP and its many programs. On February 27, 1976, the director of MCVAP was told that pursuant to an order of Indianapolis Chief of Police Engene Gallagher she would no longer have access to the DHC’s. This mandamüs action was filed shortly thereafter.

In the trial court the case was decided on a motion for summary judgment. The court ruled the DHC’s were public records as defined by the Hughes Anti-Secrecy Act, IC 1976, 5-14-1-2(1) (Burns Supp. 1978) and ordered the Indianapolis Police Department to make copies of the DHC’s available to MCVAP. The order was stayed pending this appeal.

The following issues are presented for our review:

First, whether DHC’s are public records under the Hughes Anti-Secrecy Act, and whether MCVAP is thereby entitled to access to them?

Second, was mandamus a proper remedy? Third, do appellants have standing to assert the crime victims’ right of privacy?

By reason of our disposition of this appeal we reach only the first two issues.

Appellants vigorously contend DHC’s are not public records because the Indianapolis Police Department is not required by any statute, rule or regulation to make or maintain the DHC’s. With equal vigor MCVAP asserts the DHC’s are public records as defined by the statute and points up the Indianapolis Police Department treats the reports as public records.

The Hughes Anti-Secrecy Act, IC 1976, 5-14-1-1 et seq. (Burns ed.) controls our decision. Section Three of the Act grants every citizen the right of access to public records. What constitutes a public record is defined by IC 5-14-1-2(1):

The term “public records” shall mean any writing in any form necessary, under or required, or directed to be made by any statute or by any rule or regulation of any administrative body or agency of the state or any of its political subdivisions.

The dispositive issue on appeal is whether DHC’s are required by any rule or regulation within the meaning of this section. Indiana precedent is silent on this particular issue, and although anti-secrecy provisions have been enacted in many states,² none is sufficiently similar to permit reliance on the judicial interpretations of that jurisdiction as a guide in determining the present question.³ Indeed, the Indiana provision appears to be unique both in its definition of public records and in the complete absence of any specific exemptions.

The Hughes Anti-Secrecy Act requires that its provisions be liberally construed in favor of disclosure.⁴ IC 5-14-1-1. However, the specific grant of the right of inspection extends only to “public records” as specifically defined. IC 5-14-1-3. The limitations on this court are clear. In the construction of statutes, we have nothing to do with questions of policy and political morals; such matters are for the consideration of the Legislature. County Bd of Election Comm’rs of Gibson County v. State ex rel. Sides, (1897) 148 Ind. 675, 48 N.E. 226, 227. Consideration of hardships cannot properly lead a court to broaden a statute beyond its legitimate limits. Fidelity & Casualty Co. of New York v. Miller, (1942) 111 Ind.App. 308, 38 N.E.2d 279, 281. We must examine the language used by the Legislature and give effect to every word and clause if possible, since it is presumed that all language in a statute was used intentionally. Foremost Life Insurance Co. v. Dept. of Insurance, (1979) Ind.App., 395 N.E.2d 418, 425; Evansville-Vanderburgh County Dept. of Health v. Evansville Printing Corp., (1975) 165 Ind.App. 437, 332 N.E.2d 829.

Words of a statute should be given their plain, ordinary and usual meaning, but not taken out of context. United States v. Bradford, (7th Cir. 1974) 493 F.2d 1282, cert. denied 419 U.S. 834, 95 S.Ct. 60, 42 L.Ed.2d 60; Ernst & Ernst v. Underwriters Nat. Assur. Co., (1978) Ind.App., 381 N.E.2d 897; Angel v. Behnke, (1975) 166 Ind.App. 541, 337 N.E.2d 503. Webster’s Third New International Dictionary 1986 (3rd ed. 1976) offers altogether twenty-nine different meanings of the noun “rule.” Eight mention regulations. One definition of “regulation” is “a rule or order having the force of law issued by an executive authority of a government [usually] under power granted by a constitution or delegated by legislation . .” Id. at 1913. A similar definition is found in Black’s Law Dictionary 1451 (4th ed. 1968): “Regulation of an Executive Department. The general rules relating to the subject on which a department acts, made by the head of the department under some act of Congress conferring power to make such regulations and thereby give to them the force of law.” This is nothing new. See 1 I.L.E. Administrative Law and Procedure § 27 (West 1957), quoting Burns’ Ann.St. § 60-1503, Acts 1945, ch. 120, § 3, p. 251:

The word “rule” means any rule, regulation, standards, classification, procedure, or requirement of any agency, designed to have or having the effect of law or interpreting, supplementing or implementing any statute, but does not include resolutions or directions of any agency relating solely to internal policy, internal agency organization or internal procedure which do not have the force of law and does not include “administrative adjudication.”

This statute is presently codified at IC 1976, 4-22-2-3 (Burns Supp. 1978).

The Hughes Anti-Secrecy Act definition refers to “any rule or regulation of any administrative body or agency . . . ” (emphasis added). The above definitions are the most specifically directed to this context, and therefore the most appropriate to consider in construing the statutory definition as a whole.

It is presumed that in enacting legislation, the Legislature is aware of existing law on the same subject. Schrenker v. Clifford, (1979) Ind., 387 N.E.2d 59; Speedway v. Nilson, (1979) Ind.App., 395 N.E.2d 1292. Thus, a proper approach in seeking legislative intent is to consider the history of law on that subject. Harris v. Muncie, (1975) 163 Ind.App. 522, 325 N.E.2d 208. See Miles v. State, (1920) 189 Ind. 691, 129 N.E. 10; State v. Ellis, (1916) 184 Ind. 307, 112 N.E. 98; Hurwich v. Zoss, (1976) Ind.App., 353 N.E.2d 549.

At common law, two views existed concerning the definition of public records. The more conservative and prevailing definition included records “required by law to be kept, or necessary to be kept, in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said, or done.” Linder v. Eckard, (1967) 261 Iowa 216, 152 N.W.2d 833, 835. The more liberal definition included “all written memorials made by a public officer . . . where such writings constitute a convenient, appropriate or customary method of discharging the duties of the office.” Disabled Police Veterans Club v. Long, (Mo.Ct.App., 1955) 279 S.W.2d 220, 223. The underlying theoretical approach of the common law right of access has been analyzed as presuming all public records should be subject to inspection. In such case, the determinative issue is whether a particular document may be categorized as “public.” Anti-secrecy laws usually differ in that public records are defined very broadly,⁵ and the disposi-tive issue becomes whether a particular document comes within any of the enumerated exemptions. See Note, Iowa’s Freedom of Information Act: Everything You’ve Always Wanted to Know About Public Records But Were Afraid to Ask, 57 Iowa L.Rev. 1163, 1167 (1972).

The original draft of the Hughes Anti-Secrecy Act, as amended by the House Judiciary Committee, provided:

SECTION 1. Every citizen of this state shall have the right during the usual business hours, to inspect any public records of the state or of any political sub-division thereof where such agency is engaged in conduct of matters involving the public interest except where otherwise specifically provided by law.

SEC. 3. All persons having the custody of any state public records of this state, or of county, school, city, town or township records in this state shall furnish proper and reasonable opportunities for the inspection and examination of all the such records requested of their respective offices and reasonable facilities for making memoranda abstracts therefrom, shall be available during the usual business hours, to all persons having occasion to make examination of them such records for any lawful purpose. Provided, however, that nothing in this act shall be construed to include the records of any police department in this state.

A motion to amend section three so as to exclude student school records was rejected. The Senate Judiciary Committee rejected the House draft in its entirety and substituted what is now the Hughes Anti-Secrecy Act. The rejection inter alia of the proviso relating to police records does not compel the conclusion that all police records were specifically intended to be public. It is more probable that the Senate found the draft overbroad both in its inclusions and exclusions, and chose to remedy both by a narrower definition of public records. Clearly the Senate found the initial draft unsatisfactory as a whole. The Senate’s proposed Act imposed a very specific definition of public records, and provided no specific exceptions.

The absence of enumerated exemptions in the Hughes Anti-Secrecy Act is some indication that the common law approach was intended.⁶ A stronger indication lies in the statutory definition itself. Considering that the phrase “required by law” would include both statutory requirements and the requirements of any rules promulgated under a valid rule-making power,⁷ Indiana’s statutory definition of public records is remarkably similar to the stricter of the two common law definitions. In fact, the statute appears to be even stricter in that it excludes the language permitting analysis of necessity in relation to the discharge of a duty imposed by law. The statutory definition clearly limits “public records” to writings which are required to be made, expressly or by necessary inference, by statute or rule or regulation.

The operations of the Indianapolis Police Department were analyzed in State ex rel. Mavity v. Tyndall, (1946) 224 Ind. 364, 66 N.E.2d 755, 757:

Since municipal government in Indiana is of statutory creation, it follows that operation of a city police department requires legislative authority. Undoubtedly the General Assembly might prescribe in detail means and methods for conducting the Indianapolis police department. But the legislature has not chosen to do more than authorize in general terms the Board of Public Safety to establish, regulate and operate a police system. §§ 48-6101, 48-6102, Burns’ 1933. In such operation we think it is quite clear that the Board, Chief of Police and other police officers are exercising an administrative function of the executive branch of the government, for the obligation and power to enforce the laws is executive, rather than legislative. In the absence of statutory direction or regulation the power to maintain and operate a city police system carries with it the right and duty to exercise reasonable discretion in such maintenance and operation. Courts should be cautious about interference with such an executive discretion. (Emphasis added).

The adoption of procedures by which to discharge the Police Department’s function is committed to the discretion of the officials in charge. The question of whether information collected by operation of internal procedure is considered to be of public record or available to the general public is touched on collaterally in Tyndall.

The plaintiff in Tyndall had been arrested on a misdemeanor charge which subsequently was dropped. He brought suit to compel surrender or destruction of his fingerprints and “mugshot” on the grounds that retention would violate his right to privacy. The court noted that such data is taken either upon direct orders by superiors or according to an established custom, but no duty is imposed on city police by statute.⁸ The court discussed Molineux v. Collins, (1904) 177 N.Y. 395, 69 N.E. 727, a similar case in that there were no statutory directives regarding retention of such matter:

In that case photographs and Bertillon measurements were described as public records taken pursuant to a mandatory statute and as such records not subject to surrender or destruction without a similar mandate. Where, as in the present case, fingerprints and photographs are made in the exercise of an executive discretion and not pursuant to legislative order it would seem that the authority to take would imply the authority to surrender or destroy.

State v. Tyndall, supra, 66 N.E.2d at 759. The court then balanced the plaintiff’s privacy interest against the public interest in maintaining the identification system to determine if judicial intervention was necessary. Regarding the fingerprints, the court found that retention did not harm the plaintiff. Unlike the court docket entries of the affidavit, plea, hearing and judgment of dismissal, which can be read by anyone, being public records,

His fingerprints, if they are to be of any value to the police, must be filed in a cabinet and indexed in such a manner that they may be found by one who is qualified to read them. So filed they tell nothing to the idle curious whose gossip might hurt his reputation. They are available and valuable only to the expert searching for criminals and concerned enough, we may assume, to inform himself as to the court’s disposition of appellant’s case and the final entry of acquittal. How can this harm appellant?

Id. 66 N.E.2d at 760. The court emphasized that as long as the fingerprints are kept in the file, they are harmless. With regard to the photograph, however, the complaint alleged a prima facie case. The court found that placing the plaintiff’s picture in a “rogue’s gallery” would be a serious violation of his right to privacy:

On the facts alleged in the present complaint he is entitled (upon proof) only to an injunction against the exhibition of his photograph in the “rogues’ gallery” above described. As long as the photographs are filed away from public gaze they would seem to be in the same category as the filed fingerprints. There is no occasion for a mandatory injunction.

66 N.E.2d at 762. The court concluded that circumstances may arise in which surrender or destruction of such records may be compelled.

Public records may not be destroyed except in compliance with statutory direction.⁹ Liability cannot be imposed for publicizing such records. Cox Broadcasting Corp. v. Cohn, (1975) 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328. While Tyndall does not expressly hold that the materials in question were not “public records,” that conclusion is inescapable, particularly in light of the court’s reference to Molineux v. Collins, supra. It would have been impossible to reach the result that the court did if the materials in question were public records.

The distinction between procedures mandated by law and procedures adopted in the exercise of authorized discretion relied on in Tyndall is in effect the same as a distinction recognized in Robison v. Fishback, (1911) 175 Ind. 132, 93 N.E. 666, (dicta), between procedures required in the discharge of a duty and procedures to enable the discharge of a duty.¹⁰ Both focus on whether the thing done was itself required by law, not just the result to which it aimed.

In comparing the Hughes Anti-Secrecy Act definition of public records to the above rule, it appears effectively no different considering that rules promulgated under a valid rule-making authority have the force and effect of law. Coleman v. City of Gary, (1942) 220 Ind. 446, 44 N.E.2d 101, 107 (rule duly adopted by Civil Service Commission of Gary providing demotions.procedure for police department had force and effect of law); State ex rel. Julian v. Bd. of Metropolitan Police Comm’rs of Logansport, (1907) 170 Ind. 133, 83 N.E. 83 (by accepting employment on police force, plaintiff became bound by rules and regulations lawfully adopted by board). Being creatures of the legislature, administrative bodies cannot make rules except as the legislature empowers them, otherwise they are invalid. Indiana Dept. of State Revenue v. Colpaert Realty Corp., (1952) 231 Ind. 463, 109 N.E.2d 415; State ex rel. Sights v. Edwards, (1950) 228 Ind. 13, 89 N.E.2d 443; Indiana Environmental Management Board v. Indiana Kentucky Electric Corporation, (1979) Ind.App., 393 N.E.2d 213; Hill v. Review Bd. of Indiana Employment Security Division, (1953) 124 Ind.App. 83, 112 N.E.2d 218.

Legislative authority for making rules respecting the government of the police force is found in IC 1976, 18-4-12-22 (Burns ed.) which provides that the “[police] chief, with the approval of the director [of Public Safety] shall prescribe, adopt, and put into effect such rules and regulations for the government of the force as, from time to time, he deems appropriate.” It is undisputed that DHC’s are not made pursuant to any rule promulgated in accordance with this statute. Rather, it is argued that handbooks, issued to all Indianapolis Police Department officers and detailing a procedure for radioing in their DHC reports, constitute a rule or regulation within the meaning of the Hughes Anti-Secrecy Act. To construe them so is at the same time to construe them as invalid, since there is no legislative authority to make rules except according to IC 18-4-12-22.

The appellees admit that DHC’s are not collected in the discharge of a duty but to aid in the discharge of a duty. The Chief of Police, by virtue of IC 1976, 18-4-12-13 (Burns Supp. 1978) placing him in charge of the daily operations of the Police Department, may in his discretion collect DHC’s to aid in carrying out the function of the Department. According to Tyndall, he may in his discretion surrender, destroy or keep the DHC’s in the last instance, subject to balancing the Department’s interest against the privacy interest of the person involved. In other words, the DHC’s are not public records. We have found this distinction inherent in the Hughes Anti-Secrecy Act definition of public records. The DHC’s are not collected in the discharge of a duty, since no statute, rule or regulation imposes such a duty. The same result follows: DHC’s are not public records.

The Legislature could have defined the term “Public records” so as to include materials such as DHC’s:

The legislature undoubtedly has the power by statute to declare a public policy binding upon a city police department even though the statute does not purport to regulate city police activities.

State ex rel. Mavity v. Tyndall, supra 66 N.E.2d at 757. As it is, the definition in the Hughes Anti-Secrecy Act includes many local police records. See e. g. IC 1976, 10-1-1-12 and -18 (Burns Supp. 1978) (identification information about felons and class A misdemeanants).¹¹

Because the appellees have no clear legal right to access to the DHC’s, and the appellants have no clear legal duty to give such access, mandamus is not proper in this case. State ex rel. Winkler v. Superior Court of Marion County, (1967) 248 Ind. 424, 229 N.E.2d 648.

We reverse.

MILLER, P. J., concurs with opinion. CHIPMAN, J., dissents with opinion.

1 . The acronym stands for Detective Has Copy.

2 . See generally Note, State Open Records Laws, 73 Mich.L.Rev. 1163 (1975).

3 . Police reports including names and addresses of rape victims have been held to be public records, under radically different anti-secrecy statutes however. See e. g. Ayers v. Lee Enterprises, Inc., (1977) 277 Or. 527, 561 P.2d 998, 86 A.L.R.3d 72; Poteet v. Roswell Daily Record, Inc., (1978) 92 N.M. 170, 584 P.2d 1310. McMahan v. Board of Trustees of the University of Arkansas, (1973) 255 Ark. 108, 499 S.W.2d 56, is somewhat comparable in that access is afforded only to records which are required to be kept and maintained by law.

4 .IC 5-14-1-5 is irrelevant since it assumes an initial determination has been made that the writings in question are “Public records” under the definition section.

5 . For instance, Section 68A.1 of the 1971 Iowa Code defines “public records” as “all records and documents of or belonging to this state or any county, city, town, township, school corporation, political subdivision, or tax-supported district in this state, or any branch, department, board, bureau commission, council, or committee of any of the foregoing.” (Emphasis added). Ayers v. Lee Enterprises, Inc., supra fn. 2, applied the following definition:

‘Public record’ means a document, book, paper, photograph, file, sound recording or other material, regardless of physical form or characteristics, made in pursuance of law or in connection with the transaction of public business, whether or not confidential or restricted in use. ‘Public records’ includes correspondence, public records made by photocopying and public writings, but does not include:

(a) Records of the Legislative Assembly, its committees, officers and employes.

(b) Library and museum materials made or acquired and preserved solely for reference or exhibition purposes.

(c) Extra copies of a document, preserved only for convenience of reference.

(d) A stock of publications.

ORS 192.005(5), Oregon Laws 1961, ch. 160, § 2. (Emphasis added).

6 . The Act is clearly not a mere codification of the common law, however. We consider the common law in this case only as an object of comparison.

7 . See Wallace v. Dohner, (1929) 89 Ind.App. 416, 165 N.E. 552; 1953 Op.Atty.Gen. 208 (valid regulations, adopted by an administrative body pursuant to statutory authority, constitute in effect part of the statute).

8 .The predecessor of IC 1976, 10-1-1-12 (Bums Supp. 1978) did not require information about persons who committed misdemeanors other than those listed in the statute. Acts 1945, ch, 344, § 12, p. 1622.

9 . See IC 1976, 5-15-1-1 and 5-15-5-3 (Burns Supp. 1978).

10 . The court discussed both the strict and liberal common law views regarding public records in addition to the above distinction. The court held that certain indexes belonged to the office, not the officer, on the grounds that they were indispensable to the discharge of the duties of the office, limiting its decision to the facts of that case and expressing doubt that the indexes were public records “in the strict sense.” 93 N.E. at 668.

11 . IC 1976, 10-1-2.5-1 to -4, is inapplicable to this case, since section three expressly provides that the Criminal Justice Data Division may obtain no data except that which is a public record.