§ 5-14-3-4.4 — Investigatory records, records relating to criminal intelligence information, records relating to public safety; agency actions; court actions

Indiana § 5-14-3-4.4

• Jurisdiction: Indiana
• Title 5: STATE AND LOCAL ADMINISTRATION
• Art. 14: PUBLIC RECORDS AND PUBLIC MEETINGS
• Ch. 3: Access to Public Records

Text

4. (a) This section applies to a request for a
record that the public agency considers to be excepted from disclosure
under section 4(b)(1) or 4(b)(25) of this chapter. The public agency
may do either of the following:
(1) Deny disclosure of the record or a part of the record. The
person requesting the information may appeal the denial under
section 9 of this chapter.
(2) Refuse to confirm or deny the existence of the record,
regardless of whether the record exists or does not exist, if the fact
of the record's existence or nonexistence would reveal information
that would:
(A) impede or compromise an ongoing law enforcement
investigation or result in danger to an individual's safety,
including the safety of a law enforcement officer or a
confidential source; or
(B) reveal information that would have a reasonable likelihood
of threatening public safety.
(b) This subsection applies to a request for a record that the public
agency considers to be excepted from disclosure under section 4(b)(19)
of this chapter. The agency may consult with the governor's security
council established by IC 10-19-8.1-2 in formulating a response. The
public agency may do either of the following:
(1) Deny disclosure of the record or a part of the record. The
agency or the counterterrorism and security council shall provide
a general description of the record being withheld and of how
disclosure of the record would have a reasonable likelihood of
threatening public safety by exposing a vulnerability to terrorist
attack. The person requesting the information may appeal the
denial under section 9 of this chapter.
(2) Refuse to confirm or deny the existence of the record
regardless of whether the record exists or does not exist, if the fact
of the record's existence or nonexistence would reveal information
that would have a reasonable likelihood of threatening public
safety.
(c) If a public agency does not respond to a request for a record
under this section:
(1) within twenty-four (24) hours of receiving the request for a
record from a person who:
(A) is physically present in the agency office;
(B) makes the request by telephone; or
(C) requests enhanced access to a document; or
(2) within seven (7) days of receiving the request for a record
made by mail or facsimile;
the request for the record is deemed denied. The person requesting the
information may appeal the denial under section 9 of this chapter.
(d) If a public agency refuses to confirm or deny the existence of a
record under this section, the name and title or position of the person
responsible for the refusal shall be given to the person making the
records request.
(e) A person who has received a refusal from an agency to confirm
or deny the existence of a record may file an action in the circuit or
superior court of the county in which the response was received:
(1) to compel the public agency to confirm whether the record
exists or does not exist; and
(2) if the public agency confirms that the record exists, to compel
the agency to permit the person to inspect and copy the record.
(f) The court shall determine the matter de novo, with the burden of
proof on the public agency to sustain its refusal to confirm or deny the
existence of the record. The public agency meets its burden of proof by
filing a public affidavit with the court that provides with reasonable
specificity of detail, and not simply conclusory statements, the basis of
the agency's claim that it cannot be required to confirm or deny the
existence of the requested record. If the public agency meets its burden
of proof, the burden of proof shifts to the person requesting access to
the record. The person requesting access to the record meets the
person's burden of proof by proving any of the following:
(1) The agency's justifications for not confirming the existence of
the record contradict other evidence in the trial record.
(2) The agency is withholding the record in bad faith.
(3) An official with authority to speak for the agency has
acknowledged to the public in a documented disclosure that the
record exists. The person requesting the record must prove that
the information requested:
(A) is as specific as the information previously disclosed; and
(B) matches the previously disclosed information.
(g) Either party may make an interlocutory appeal of the trial court's
determination on whether the agency's refusal to confirm or deny the
existence of the record was proper.
(h) If the court, after the disposition of any interlocutory appeals,
finds that the agency's refusal to confirm or deny was improper, the
court shall order the agency to disclose whether the record exists or
does not exist. If the record exists and the agency claims that the record
is exempt from disclosure under this chapter, the court may review the
public record in camera to determine whether any part of the record
may be withheld.
(i) In an action filed under this section, the court shall award
reasonable attorney's fees, court costs, and other reasonable expenses
of litigation to the prevailing party if:
(1) the plaintiff substantially prevails; or
(2) the defendant substantially prevails and the court finds the
action was frivolous or vexatious.
A plaintiff is eligible for the awarding of attorney's fees, court costs,
and other reasonable expenses regardless of whether the plaintiff filed
the action without first seeking and receiving an informal inquiry
response or advisory opinion from the public access counselor.
(j) A court that hears an action under this section may not assess a
civil penalty under section 9.5 of this chapter in connection with the
action.

Legislative History

As added by P.L.248-2013, SEC.4. Amended by P.L.249-2019, SEC.1.