                                                           FILED
                                                        Jan 29 2013, 9:03 am
FOR PUBLICATION
                                                                CLERK
                                                              of the supreme court,
                                                              court of appeals and
                                                                     tax court



ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

JUSTIN R. WALL                                 ROBERT S. GARRETT
Wall Legal Services                            MATTHEW G. GRANTHAM
Huntington, Indiana                            Bowers, Brewer, Garrett & Wiley, LLP
                                               Huntington, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

SETH ANDERSON,                                 )
                                               )
       Appellant-Plaintiff,                    )
                                               )
              vs.                              )       No. 35A04-1207-MI-357
                                               )
HUNTINGTON COUNTY BOARD OF                     )
COMMISSIONERS,                                 )
                                               )
       Appellee-Defendant.                     )



                 APPEAL FROM THE HUNTINGTON SUPERIOR COURT
                    The Honorable Kenton W. Kiracofe, Special Judge
                            Cause No. 35D01-1203-MI-230



                                    January 29, 2013

                              OPINION – FOR PUBLICATION


BAKER, Judge
          In this case, we are asked to determine what suffices as “reasonably particular” in

a request for public records submitted under the Access to Public Records Act (APRA).1

Here, appellant-plaintiff, Seth Anderson, submitted four requests for emails pursuant to

the APRA. Each request was identical – all seeking the emails sent or received within a

four and one-half month time span – the only difference between the requests was that

each named a different employee.

          About one week later, appellee-defendant, the Huntington County Board of

Commissioners (the “Commissioners”), sent a letter through counsel to Anderson,

requesting further clarification and assuring Anderson that once clarification was

received, the appropriate records would be provided. Instead, Anderson filed a formal

complaint with the Public Access Counselor, who upheld the Commissioners’ decision,

insofar as Anderson’s request was not “reasonably particular” as required by the APRA.

          Anderson filed a complaint to compel access to the public records, seeking a court

order to compel the Commissioners to supply the records as originally requested and for

attorney fees and costs. The Commissioners informed Anderson that they intended to

comply with his requests as written.         Anderson concedes that he has received all

requested information but not before a hearing was held after which, the trial court

concluded that the Commissioners did not improperly deny Anderson’s requests because

they were not “reasonably particular” and denied his request for attorney fees and costs.




1
    Ind. Code chapter 5-14-3 et seq.
                                               2
       We conclude that, inasmuch as a county employee spent ten hours and purchased

new software to retrieve 9500 emails that then had to be turned over to human resources

for further redaction, we agree with the Public Access Director and the trial court that

Anderson’s requests were not reasonably particular.                Likewise, we conclude that

Anderson has not substantially prevailed under the APRA and is, therefore, not entitled to

attorney fees, court costs, and reasonable expenses.

                                             FACTS2

       On January 26, 2012, Anderson made four requests to the Commissioners’ Human

Resources Director, Erika Devine, for email communications that fell under the APRA.

More particularly, Anderson requested:

       a. Emails that qualify as a public record that were sent to or from Erika
          Devine between September 1, 2011 & Jan 15, 2012.
       b. Emails that qualify as a public record that were sent to or from Kathy
          Branham between Sept. 1, 2011 & Jan 15, 2012.
       c. Emails that qualify as a public record that were sent TO or FROM Leon
          Hurlbert between September 1, 2011 And [sic] Jan 15, 2012.
       d. Emails that qualify as a public record that were sent TO or FROM Tom
          Wall between September 1, 2011 and Jan 15, 2012.

Appellant’s App. 16-19 (emphases in original).

       On February 2, 2012, the Commissioners, through their attorney Robert Garrett,

sent Anderson a letter, explaining that his request was denied because under Indiana

Code section 5-14-3-3, Anderson’s request did not identify with “reasonable

particularity” the records being requested. Nevertheless, the Commissioners assured


2
 We heard oral argument on December 18, 2012, in Indianapolis. We thank counsel for their informative
oral and written presentations.
                                                 3
Anderson that once he had described the requested public records with reasonable

particularity, the appropriate records would be provided to him.

      Anderson, however, did not send a second request. Instead, Anderson filed a

formal complaint with the Office of the Public Access Counselor. In a March 15, 2012

opinion, the Public Access Counselor, Joseph Hoage, determined that “if the County

denied your request for failure to identify with reasonable particularity the records that

were sought, it violated the APRA. The County’s proper response to such a request

would be to seek further clarification from you rather than simply denying the request.”

Appellant’s App. p. 31.

      Hoage further concluded that “[a]s to all other issues, it is my opinion that the

County has not violated the APRA.” Id. at 34. Put another way, the Commissioners had

not violated the APRA because they had not denied Anderson’s request outright but had

requested that Anderson revise his request such that it was reasonably particular as

required by the APRA.

      In Hoage’s opinion, he referenced several previous opinions regarding email

correspondence, pointing out that “e-mail is a method of communication and not a type

of record; requests for records that only identify the records by method of communication

only are not reasonably particular.” Id. at 33. Hoage gave examples to illustrate his

reasoning and provide guidance. For instance, “a request for all e-mail correspondence to

and from Jane Doe for a range of dates is not reasonably particular.” Id. “However, a



                                            4
request for all e-mail correspondence from Jane Doe to Jim Smith for a range of dates

would be reasonably particular.” Id.

       Again, rather than clarifying his request, on March 27, 2012, Anderson filed a

complaint to compel access to public records. In the complaint, Anderson sought a court

order compelling the Commissioners to provide the records as he had originally

requested. Additionally, Anderson sought to recover his attorney fees and costs.

       Sometime in April, possibly even before the Commissioners had been served with

Anderson’s complaint, the Commissioners informed Anderson that they intended to

comply with his requests as he had originally written them.                         Tr. p. 42-43.3

Notwithstanding the Commissioners’ willingness to comply with Anderson’s requests,

the trial court held a hearing on Anderson’s complaint on May 17, 2012. During the

hearing, Anderson admitted that he had been told that he would receive the information

that he had requested but that there would be a delay so that the Commissioners could

redact certain non-public information like social security numbers and information

protected by HIPAA. Id. at 53. Still, Anderson defended the scope of his requests,

maintaining that it was his right to look for “unknown unknowns” in his effort to obtain

information. Id. at 83.

       To comply with Anderson’s request, J. Ryan Wall, a Huntington County

Information Technology (IT) employee, had to spend ten hours of his time and purchase

3
  Anderson includes in his Appendix, Defendant’s Exhibit A. Appellant’s App. p. 37. From this exhibit,
it appears that the Commissioners intended to comply with Anderson’s requests, as written, on April 2,
2012. Id. However, the trial court excluded Exhibit A as evidence, and the Commissioners do not
challenge this evidentiary ruling on appeal. Tr. p. 86.
                                                  5
new software. Wall compiled 9500 emails and provided them to the Human Resource

Director on May 9, 2012, for further review and redacting. Anderson concedes that he

received all the information as he originally requested, on July 12, 2012. Appellant’s Br.

p. 14.

         In the trial court’s June 28, 2012 order, it concluded that “the County did not

improperly deny access to the records because Anderson was not ‘reasonably particular’

when he requested e-mails that qualify as public records that were sent to, or from Tom

Wall, Leon Hurlburt, Kathy Branham, an[d] Erika Devine between September 1, 2011

and January 15, 2012.” Appellant’s App. p. 5. Thus, the trial court denied Anderson’s

request for an order to compel the Commissioners to provide Anderson the requested

emails and his request for attorney fees, court costs, and related expenses. Despite

receiving the requested records, Anderson now appeals.

                             DISCUSSION AND DECISION

                                       I. Mootness

         As an initial matter, the Commissioners argue that insofar as Anderson concedes

that he received the information he requested, the merits of this appeal are moot with the

exception of Anderson’s request for attorney fees. An issue is considered moot when

there is no live case or controversy, and the parties lack a legally cognizable interest in

the outcome of its resolution or where no effective relief can be rendered to the parties.

Poulard v. Laporte Cnty. Elections Bd., 922 N.E.2d 734, 737 (Ind. Ct. App. 2010).

Nevertheless, even if an appeal is moot, we can still review it under the public interest

                                            6
exception, which may be invoked when the issue is a question of great public importance

that is likely to recur. Id.

       The Commissioners acknowledge that Anderson presents issues that are both

novel and may arise again in other cases involving access to public records. Appellee’s

Br. p. 7. However, the Commissioners point out that government agencies have the

Public Access Counselor to assist them.

       Anderson responds by emphasizing that this is an issue of first impression,

involving important legal issues stemming from the APRA. This fact alone makes this

issue a matter of “great public importance that is likely to recur.” Poulard, 922 N.E.2d at

737.

       Anderson also contends that his appeal is not moot because there are still

unresolved legal issues such as whether or not his request was “reasonably particular.”

Indeed, Anderson argues that a definition of “reasonably particular” is of “upmost [sic]

importance.” Reply Br. p. 6. Because Anderson has presented us with an issue of first

impression, namely, whether his request was “reasonably particular” under APRA, we

will address the merits of Anderson’s appeal.

                                II. Reasonably Particular

       Anderson argues that his requests to the Commissioners were “reasonably

particular” as required by Indiana Code section 5-14-3-3(a) and, therefore, his requests

should not have been denied, and the Commissioners should have been court ordered to



                                            7
produce the records exactly as he requested them.4 The Commissioners counter that they

did not refuse to provide access to public records.                 Instead, they asked for more

information so that they could better facilitate Anderson’s request without incurring

unreasonable cost and expense.

         Initially, we observe that the public policy behind the APRA is to provide the

public with full and complete information regarding the affairs of the government. See

I.C. § 5-14-3-1 (stating that “it is the public policy of the state that all persons are entitled

to full and complete information regarding affairs of the government . . . .”) However, to

request access to a public record, it must be described with “reasonable particularity.”

I.C. § 5-14-3-3(a)(1). The meaning of this phrase is the crux of the dispute between the

Commissioners and Anderson.

        “Reasonable particularity” is not defined within the APRA; however, Indiana

Code section 5-14-3-1 states that “[t]his 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.” Recently, in Jent v. Fort Wayne Police Department, 973

N.E.2d 30, 33 (Ind. Ct. App. 2012), a case factually similar to the instant one, a panel of

this Court likened the reasonable particularity requirement to the discovery rules, stating

that “a requested item has been designated with ‘reasonable particularity’ if the request

4
  Anderson’s first argument is actually that email correspondence is a public record within the definition
of the Indiana Code. Inasmuch as the Commissioners “assume for the sake of argument that the e-mails
in question are individually ‘public records’ under Ind. Code § 5-14-3-2(n),” we need not address this
issue. Appellee’s Br. p. 8.
                                                    8
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.”

       It is noteworthy that while the Commissioners agree with Anderson that the Public

Access Counselor’s decision is not binding on the trial court or this Court, in the absence

of case law or adequate statutory authority, this Court should give considerable deference

to the opinions of the Public Access Counselor. The Commissioners point out that in

other areas of administrative law, “with respect to an agency’s interpretation of statutes

and regulations that [it] is charged with enforcing, such interpretation is entitled to great

weight . . . .” Austin v. Ind. Family & Soc. Servs. Admin., 947 N.E.2d 979, 982 (Ind. Ct.

App. 2011). Nevertheless, the Commissioners concur with Anderson that unlike other

cases under the Administrative Orders and Procedures Act, the trial court reviews an

opinion of the Public Access Counselor de novo. I.C. § 5-14-3-9.

       Here, Hoage, the Public Access Counselor, defined “[p]articularity” as “the

quality or state of being particular as distinguished from universal.” Appellant’s App. p.

32. For example, a request for emails sent and received by a person in the last one

hundred days lacks the particularity required to satisfy the statute and is a “universal”

request. Id. at 31-33. Hoage also noted that records broadly involving a method of

communication such as email did not rise to the level of “reasonable particularity” so as

to compel disclosure. Id. at 33.

       In reaching his conclusion, Hoage relied on prior opinions, inasmuch as this was

not the first time that a Public Access Counselor had addressed this issue. Additionally,

                                             9
Hoage suggested ways in which Anderson could modify his request noting that “a request

for all e-mail correspondence from Jane Doe to Jim Smith for a range of dates would be

reasonably particular,” whereas “a request for all e-mail correspondence to and from Jane

Doe for a range of dates is not reasonably particular.” Id. Instead, Anderson chose to file

suit.

        The trial court again referenced Hoage’s opinion, approving the examples of what

would and would not be considered reasonably particular. Additionally, the trial court

stated that allowing requests such as Anderson’s would permit a “fishing expedition.”

Appellant’s App. p. 4.

        Moreover, Anderson’s requests required that the Commissioners determine which

emails were truly public records and which were not. Consequently, even after the

Commissioners compiled the emails, they had to undergo a process to ensure that they

did not provide protected health information or other non-disclosable material. Tr. p. 53.

This process involved turning over the 9500 emails to Human Resources to be redacted,

after an IT employee had already spent ten hours and purchased new software acquiring

the emails. Id. at 95, 98.

        Nevertheless, Anderson points out that the “reasonably particular” requirement

exists so that the government agency knows what is being requested from the agency.

Anderson asserts that the strongest evidence that his requests were reasonably particular

is that the Commissioners provided the information that Anderson requested without

Anderson modifying his initial requests.

                                            10
        Although the Commissioners ultimately spent the time and expense compiling and

reviewing 9500 emails, they did not necessarily have a legal obligation to do so, and, as

argued above, the Public Access Counselor’s opinions state the opposite. To be sure, the

fact that the Commissioners provided the information exactly as Anderson requested it

does not define the APRA. Indeed, we agree with the Public Access Counselor’s opinion

that Anderson’s requests were not reasonably particular under the APRA, and the

Commissioners were under no legal obligation to provide to him the information that he

requested. Consequently, this argument fails.

                                     III. Costs and Attorney Fees

        Anderson maintains that he has substantially prevailed and that awarding him

attorney fees, court costs, and all other reasonable costs of litigation is mandatory. 5

Indiana Code section 5-14-3-9(i) provides that “[i]n any action filed under this section, a

court shall award reasonable attorney’s fees, court costs, and other reasonable expenses

of litigation to the prevailing party if . . . the plaintiff substantially prevails; or [] the

defendant substantially prevails and the court finds the action frivolous or vexatious.”

When the requirements of the statute have been met, the award of attorney fees is

mandatory. Indianapolis Newspapers v. Ind. State Lottery Comm’n, 739 N.E.2d 144,

156 (Ind. Ct. App. 2000).

5
  Anderson argues that he is entitled to both trial attorney fees and costs and appellate attorney fees and
costs. In the Commissioners’ brief, they state that “[f]or purposes of this appeal only, the Commissioners
assume for the sake of argument that a prevailing party may obtain an award for appellate attorney fees as
well.” Appellee’s Br. p. 17 n.9. However, the Commissioners point out that if this Court reverses the
trial court’s denial of attorney fees and costs, remand is appropriate so that the trial court can recalculate
attorney fees for Anderson’s appeal.
                                                     11
       Although the statute fails to define “substantially prevails,” it is unmistakable that

Anderson did not substantially prevail in the instant case. As we concluded above,

Anderson’s requests for information from the Commissioners were not reasonably

particular. Furthermore, Anderson received all of the information as he requested it in

what must have been a reasonable time frame because he did not allege that it was

unreasonable. Anderson was given notice that he would receive the information he

requested before the trial court’s hearing on the matter. Accordingly, we cannot say that

Anderson substantially prevailed “[i]n an action filed under this section.” I.C. § 5-14-3-

9(i). Consequently, this argument also fails.

              The judgment of the trial court is affirmed.

BARNES, J., and BROWN, J., concur.




                                             12
