FOR PUBLICATION FILED
Aug 15 2012, 8:47 am
CLERK
of the supreme court,
court of appeals and
tax court
APPELLANT PRO SE: ATTORNEY FOR APPELLEE:
MICHAEL R. JENT CAROLYN M. TRIER
Pendleton, Indiana Trier Law Office
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL R. JENT, )
)
Appellant-Petitioner, )
)
vs. ) No. 02A03-1108-MI-388
)
FORT WAYNE POLICE DEPARTMENT, )
)
Appellee-Respondent. )
APPEAL FROM THE ALLEN CIRCUIT COURT
The Honorable Jeremy J. Grogg, Judge Pro Tempore
Cause No. 02C01-1004-MI-454
August 15, 2012
OPINION - FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Michael Jent filed a public records request with the Fort Wayne Police Department
(“FWPD”), which the FWPD denied. Jent then filed a motion for declaratory and
injunctive relief asking the trial court to compel the FWPD to disclose the requested
records. Jent next moved for summary judgment, and the FWPD filed a cross-motion for
summary judgment. Following a hearing, the trial court denied Jent’s motion and entered
summary judgment for the FWPD. In this appeal, Jent contends that the trial court erred
when it entered summary judgment in favor of the FWPD.
We affirm.
FACTS AND PROCEDURAL HISTORY
In 2005, Jent was convicted of six counts of child molesting, as Class A felonies;
child molesting, as a Class C felony; and criminal confinement, as a Class C felony; and
he was adjudicated an habitual offender. The trial court sentenced Jent to 238 years. He
remains incarcerated at the Pendleton Correctional Facility.
On February 23, 2009, Jent submitted a Request for Access to Public Record to
Carol Taylor, the Associate City Attorney for the City of Fort Wayne/Fort Wayne Police
Department. In that request, Jent sought access to the following public records:
Daily incident report logs of crimes committed from January 1st, 2001[,]
through December 8th, 2005[,] containing the crimes of abduction and
sexual assault and/or attempted abduction and attempted sexual assault with
the victims describing the perpetrator as a[n] Hispanic male with a tattoo of
a rose and green stem on the left arm or side and/or if the victim was taken
to a[n] abandoned house and/or placed in a van during the commission of
the crime.
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Appellant’s App. at 29. On February 26, Taylor wrote to Jent acknowledging receipt of
his records request and stating that the City would provide the daily incident report logs
“to the extent that the City has records.” Appellee’s App. at 16. And Taylor stated that
the City was denying the “remainder details/information of your request, pursuant to I.C.
[§] 5-14-3-4(b)(1)—investigatory records of a law enforcement agency.” Id.
On March 4, Sergeant Andrew Bubb, with the Internal Affairs Unit of the City of
Fort Wayne, wrote to Jent and stated:
The City Attorney’s office has forwarded your recent records request to the
Fort Wayne Police Department.
The information that would be considered the “daily incident report
logs” exists as electronic data. This data can only be screened to the extent
that our system’s software will allow. The software will not facilitate the
production of any kind of list with the parameters you specified.
The format in which the data is produced contains sensitive
information which the department deems to be investigatory records. Your
request is denied in accordance with I.C. [§] 5-14-3-4(b)(1)—investigatory
records of a law enforcement agency.
Id. at 17 (emphasis added).
Jent then filed a “formal complaint” with the Public Access Counselor (“PAC”)
for the State alleging that the FWPD had “violated the Access to Public Records Act
(“APRA”) (Ind. Code [chapter] 5-14-3) by denying [him] access to records.” Appellant’s
App. at 32. In response, the PAC issued an advisory opinion, stating in relevant part as
follows: “It is my opinion the Department must make available for inspection and
copying the information required to be maintained in a daily log. Further, it is my
opinion any other information contained in the requested records falls under the
investigatory records exception.” Id.
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On April 13, 2010, Jent filed his complaint for declaratory and injunctive relief
asking the trial court to compel the FWPD to provide the requested records. And on
March 10, 2011, Jent filed a motion for summary judgment on his complaint. The FWPD
filed a cross-motion for summary judgment. Following a hearing, the trial court denied
Jent’s motion and entered summary judgment in favor of the FWPD. This appeal ensued.
DISCUSSION AND DECISION
Our standard of review for summary judgment appeals is well established:
When reviewing a grant of summary judgment, our standard of review is
the same as that of the trial court. Considering only those facts that the
parties designated to the trial court, we must determine whether there is a
“genuine issue as to any material fact” and whether “the moving party is
entitled to a judgment a matter of law.” In answering these questions, the
reviewing court construes all factual inferences in the non-moving party’s
favor and resolves all doubts as to the existence of a material issue against
the moving party. The moving party bears the burden of making a prima
facie showing that there are no genuine issues of material fact and that the
movant is entitled to judgment as a matter of law; and once the movant
satisfies the burden, the burden then shifts to the non-moving party to
designate and produce evidence of facts showing the existence of a genuine
issue of material fact.
Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind. 2009) (citing
Ind. Trial Rule 56(C)) (emphasis added). If the trial court’s entry of summary judgment
can be sustained on any theory or basis in the record, we must affirm. Beatty v.
LaFountaine, 896 N.E.2d 16, 20 (Ind. Ct. App. 2008), trans. denied.
The first section of the Access to Public Records Act (“APRA”), Indiana Code
Section 5-14-3-1, provides:
A fundamental philosophy of the American constitutional form of
representative government is that government is the servant of the people
and not their master. Accordingly, it is the public policy of the state that all
persons are entitled to full and complete information regarding the affairs of
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government and the official acts of those who represent them as public
officials and employees. Providing persons with the 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. This chapter shall be liberally construed to implement this
policy and place the burden of proof for the nondisclosure of a public
record on the public agency that would deny access to the record and not on
the person seeking to inspect and copy the record.
Section 3 of APRA provides: “Any person may inspect and copy the public records of
any public agency during the regular business hours of the agency, except as provided in
section 4 of this chapter.” Ind. Code § 5-14-3-3(a). But the requestor must “identify with
reasonable particularity the record being requested.” Ind. Code § 5-14-3-3(a)(1). Section
4 in turn provides several exceptions to the disclosure requirement of Section 3. Section
4(a) sets forth mandatory exceptions to public access, and section 4(b) lists exceptions
which may be invoked at the discretion of the public agency. It is undisputed that the
FWPD is a public agency subject to APRA.
In support of its cross-motion for summary judgment, the FWPD asserted that it
could not fulfill any part of Jent’s records request because the request does not comply
with Indiana Code Section 5-14-3-3(a)(1), which requires that the request “identify with
reasonable particularity the record being requested.” The “reasonable particularity”
requirement under this statute has not previously been interpreted by an Indiana court. In
the context of the discovery rules, however, a requested item has been designated with
“reasonable particularity” if the request enables the subpoenaed party to identify what is
sought and enables the trial court to determine whether there has been sufficient
compliance with the request. In re WTHR-TV, 693 N.E.2d 1, 6 (Ind. 1998). Here, in
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essence, the FWPD contends that Jent’s request fails the first part of that test, namely,
that it does not enable the FWPD to identify the records sought.
Again, Jent requested the following records:
Daily incident report logs of crimes committed from January 1st, 2001[,]
through December 8th, 2005[,] containing the crimes of abduction and
sexual assault and/or attempted abduction and attempted sexual assault with
the victims describing the perpetrator as a[n] Hispanic male with a tattoo of
a rose and green stem on the left arm or side and/or if the victim was taken
to a[n] abandoned house and/or placed in a van during the commission of
the crime.
Appellee’s App. at 15. While Jent’s request describes the records sought in some detail,
the level of detail does not necessarily satisfy the “reasonable particularity” requirement
of the statute. In response to a request under APRA, a public agency is required to search
for, locate, and retrieve records. Depending upon the storage medium, the details
provided by the person making the request may or may not enable the agency to locate
the records sought. Indeed, here, the FWPD was unable to fulfill the request using the
search parameters Jent provided.
As Sergeant Bubb explained in response to Jent’s request, the records are
maintained electronically and the “software will not facilitate the production of any kind
of list with the parameters [Jent] specified.” Id. at 17. The FWPD designated Sergeant
Bubb’s letter as evidence in support of summary judgment. That designated evidence
shows that the parameters given in the request are incompatible with the software that
manages the electronic data. In other words, the software lacks the capacity to search and
retrieve the records requested.
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In support of his summary judgment motion, Jent designated as evidence the
PAC’s advisory opinion. In that opinion, the PAC observed that “incident reports” and
“daily logs” might be separate records and that “incident reports are considered
investigatory records,” which “may be withheld from disclosure at the discretion of the
agency.” Id. at 33 (citing Ind. Code § 5-14-3-4(b)(1)). But the PAC stated that the daily
logs must be disclosed under APRA. Further, the PAC stated that “it would not be
appropriate for the [FWPD] to deny [Jent] access to the information on the basis that it is
stored in a way that would not allow the [FWPD] to separate the daily log information
from the discretionary investigatory record information.” Appellant’s App. at 35
(emphasis added).
The PAC misconstrues Sergeant Bubb’s letter. The letter does not deny Jent’s
request based on an alleged inability to separate the daily logs from other documents.
Rather, the letter gives two other reasons for denying Jent’s request: that the FWPD was
unable to search its records using the parameters given and that the records requested are
excepted from disclosure as investigatory records. The PAC did not express any opinion
concerning whether the FWPD’s software had the capacity to locate and retrieve the
records using the parameters Jent provided.
In short, without designated evidence to the contrary, there is no factual basis to
question Sergeant Bubb’s statement that the records requested cannot be located or
retrieved using the search parameters provided by Jent. Whether a request identifies with
reasonable particularity the record being requested turns, in part, on whether the person
making the request provides the agency with information that enables the agency to
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search for, locate, and retrieve the records. Here, the undisputed designated evidence
shows that such is not the case and that the FWPD is entitled to summary judgment.1
In the context of a summary judgment, when the FWPD designated as evidence
Sergeant Bubb’s statement that the FWPD could not access the requested records with
the parameters given, it satisfied its burden to make a prima facie showing that Jent’s
request lacked reasonable particularity and that the FWPD was entitled to summary
judgment. Jent did not designate any evidence showing a question of material fact on
whether the FWPD had the capacity to locate the records using the search parameters set
out in his request. Accordingly, it is undisputed that the FWPD was entitled to summary
judgment on the basis that Jent’s request did not conform with Indiana Code Section 5-
14-3-3(a)(1).
Again, if the trial court’s entry of summary judgment can be sustained on any
theory or basis in the record, we must affirm. Beatty, 896 N.E.2d at 20. We hold that the
undisputed designated evidence shows that Jent’s request does not identify with
reasonable particularity the records sought. Accordingly, the trial court did not err when
it denied Jent’s motion for summary judgment and entered summary judgment in favor of
the FWPD.
Affirmed.
RILEY, J., and DARDEN, Sr.J., concur.
1
We note that the undisputed designated evidence shows that the FWPD could not have searched
for the records using the parameters Jent provided even had the FWPD sought to locate the same records
for its own use.
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