                                                                          FILED
                                                                     Apr 29 2020, 10:33 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Mark J. Crandley                                            Margaret M. Christensen
Barnes & Thornburg LLP                                      Mark R. Molter
Indianapolis, Indiana                                       Dentons Bingham Greenebaum
                                                            LLP
ATTORNEYS FOR AMICUS – INDIANA                              Indianapolis, Indiana
PROSECUTING ATTORNEYS
COUNCIL                                                     ATTORNEY FOR AMICI –
                                                            REPORTER’S COMMITTEE
Christopher W. Naylor
                                                            FOR FREEDOM OF THE
Executive Director
                                                            PRESS, ET AL.
J. Thomas Parker
Deputy Director                                             Michael A. Wilkins
Indiana Prosecuting Attorneys Council                       Broyles Kight & Ricafort
                                                            Indianapolis, Indiana
ATTORNEYS FOR AMICUS – STATE
OF INDIANA
Curtis T. Hill, Jr.
Attorney General of Indiana
Sierra A. Murray
Deputy Attorney General
Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020                            Page 1 of 16
      Carroll County E911,                                        April 29, 2020
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  19A-MI-2682
              v.                                                  Appeal from the Marion Superior
                                                                  Court
      Aishah Hasnie,                                              The Honorable Timothy W.
      Appellee-Plaintiff.                                         Oakes, Judge
                                                                  Trial Court Cause No.
                                                                  49D02-1802-MI-7041



      Najam, Judge.


                                         Statement of the Case
[1]   Carroll County E911—the 9-1-1 call and dispatch center for Carroll County

      (“the Dispatch Center”)—appeals the trial court’s entry of summary judgment

      for Tribune Broadcasting Indianapolis, LLC, d/b/a Fox 59 (“Fox 59”), on Fox

      59’s complaint seeking disclosure of certain 9-1-1 calls pursuant to Indiana’s

      Access to Public Records Act, Ind. Code §§ 5-14-3-1 to -10 (2019) (“APRA”).

      The Dispatch Center raises the following two issues for our review:


              1.       Whether the 9-1-1 calls in question were records that may
                       be excepted from public disclosure under APRA.




      Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020                      Page 2 of 16
              2.       Whether the trial court abused its discretion when it
                       permitted Fox 59 to substitute itself for an employee as the
                       real party in interest in this matter after the employee had
                       left her employment with Fox 59.


[2]   The 9-1-1 calls at issue here were originally received and recorded by the

      Dispatch Center but, thereafter, acquired by local law enforcement agencies

      pursuant to a criminal investigation. Those agencies asked the Dispatch Center

      not to honor Fox 59’s APRA request because public disclosure of the calls

      could compromise their investigation. APRA allows for otherwise public

      records to be withheld from public disclosure when those records are the

      investigatory records of law enforcement agencies. Accordingly, we hold that,

      pursuant to that exception, Fox 59 is not entitled to summary judgment against

      the Dispatch Center. We therefore reverse the trial court’s entry of summary

      judgment for Fox 59 on the APRA issue. However, we affirm the trial court’s

      substitution of Fox 59 as the real party in interest.


                                   Facts and Procedural History
[3]   The Dispatch Center “is a public safety answering and dispatch point for police,

      fire, emergency medical[,] and emergency management service” for Carroll

      County. Appellant’s App. Vol. III at 6. Its mission is to “serve as the

      communications link between the citizen and public safety agencies; make

      accurate identification of the citizen’s location and public safety response needs;

      quickly and accurately activate public safety services; [and] provide

      communications support and coordination of all public safety and supporting

      agencies.” Id. The Dispatch Center’s Lead Communicator manages the
      Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020          Page 3 of 16
      Dispatch Center and its employees and is required to inform the Carroll County

      Commissioners’ Office of any employee discipline within the Dispatch Center.

      Id. at 42.


[4]   In November of 2016, four children died in a residential house fire in Flora,

      which is in Carroll County. Multiple 9-1-1 callers reported the fire to the

      Dispatch Center, which recorded the calls (“the 9-1-1 calls”). Indiana State

      Police Detective Benjamin Rector was part of the team that then investigated

      the fire, which became a criminal investigation that remains ongoing. He

      would later describe the 9-1-1 calls as follows:


              7.     The [9-1-1 calls] capture details regarding the fire relevant
              to the law enforcement investigation.


              8.     The public release of [the 9-1-1 calls] would harm the
              investigation.


              9.     This is because the recordings contain details about the fire
              not publicly known, including who witnessed the fire, what they
              reported about what they saw, when they witnessed it, the
              witnesses’ awareness[es] of who occupied the home where the
              fire occurred, and conversations occurring in the background of
              the calls.


              10. Allowing these details to become publicly known would
              undermine the ongoing investigation because these details take
              significance when investigators interview witnesses and potential
              suspects.


              11. If the details recorded in the [9-1-1 calls] became publicly
              known, potential suspects and witnesses could use this
      Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020             Page 4 of 16
              information to evade questioning and it would limit
              investigators[’] ability to know what information suspects have
              first-hand knowledge of and which information witnesses learned
              through public disclosure of evidentiary material like [the 9-1-1
              calls].


              12. Because the investigation is ongoing, investigators cannot
              know all details in the recordings that may be of importance as
              the investigation continues. Releasing the records at this time
              may disclose facts of significance that potential suspects could
              use in attempting to evade prosecution.


              13. Gathering [9-1-1] recordings is a common investigative
              technique in homicide and other major investigations. I have on
              several earlier occasions preserved [9-1-1] recordings that were
              later used as evidence in criminal prosecutions.


      Appellant’s App. Vol. IV at 57.


[5]   In June of 2017, Aishah Hasnie, then a news reporter for Fox 59, requested that

      the Dispatch Center release the 9-1-1 calls to her under APRA. The Dispatch

      Center declined, stating that, because “the fire is still under police

      investigation” by the Carroll County Sheriff’s Department and the Carroll

      County Prosecutor, those agencies were “exercising their discretion not to

      permit disclosure of such recording or recordings at this time, pursuant to

      [Indiana Code Section] 5-14-3-4(b)(1).” Appellant’s App. Vol. II at 15.


[6]   Hasnie requested that the Indiana Public Access Counselor (the “PAC”) review

      her APRA request and the Dispatch Center’s denial of her request. The PAC

      opined that the Dispatch Center was required under APRA to disclose the 9-1-1


      Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020         Page 5 of 16
      calls. However, the Dispatch Center disagreed and continued not to disclose

      the 9-1-1 calls. Hasnie then filed her complaint in the Marion Superior Court.


[7]   In April of 2019, Fox 59 moved to substitute itself as the real party in interest

      for Hasnie, who had left her employment there, and also moved for summary

      judgment. The Dispatch Center objected to the substitution of parties and filed

      its response to the summary judgment motion. In its response, the Dispatch

      Center designated the affidavit of Detective Rector. The trial court granted Fox

      59’s motion to substitute itself for Hasnie. The court then entered summary

      judgment for Fox 59. 1 This appeal ensued.


                                         Discussion and Decision
                       Issue One: Whether the Dispatch Center Lawfully
                   Withheld the 9-1-1 Calls from Public Disclosure under APRA

[8]   We first address the Dispatch Center’s appeal from the trial court’s entry of

      summary judgment for Fox 59 on the APRA request. Our standard of review is

      clear:


                We review summary judgment de novo, applying the same
                standard as the trial court: “Drawing all reasonable inferences in
                favor of . . . the non-moving parties, summary judgment is
                appropriate ‘if the designated evidentiary matter shows that there
                is no genuine issue as to any material fact and that the moving
                party is entitled to judgment as a matter of law.’” Williams v.
                Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A




      1
          The court stayed its order for Fox 59 pending appeal.


      Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020        Page 6 of 16
              fact is ‘material’ if its resolution would affect the outcome of the
              case, and an issue is ‘genuine’ if a trier of fact is required to
              resolve the parties’ differing accounts of the truth, or if the
              undisputed material facts support conflicting reasonable
              inferences.” Id. (internal citations omitted).


              The initial burden is on the summary-judgment movant to
              “demonstrate [ ] the absence of any genuine issue of fact as to a
              determinative issue,” at which point the burden shifts to the non-
              movant to “come forward with contrary evidence” showing an
              issue for the trier of fact. Id. at 761-62 (internal quotation marks
              and substitution omitted). And “[a]lthough the non-moving
              party has the burden on appeal of persuading us that the grant of
              summary judgment was erroneous, we carefully assess the trial
              court’s decision to ensure that he was not improperly denied his
              day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
              916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
              omitted).


      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to

      Hughley).


[9]   Whether the 9-1-1 calls here can be excepted from disclosure under APRA is a

      question of statutory interpretation. As the Indiana Supreme Court has stated:


              [S]tatutory interpretation is a question of law that we review de
              novo. In interpreting a statute, the first step is to determine
              whether the Legislature has spoken clearly and unambiguously
              on the point in question. When a statute is clear and
              unambiguous, we apply words and phrases in their plain,
              ordinary, and usual sense. When a statute is susceptible to more
              than one interpretation it is deemed ambiguous and thus open to
              judicial construction. When faced with an ambiguous statute,
              our primary goal is to determine, give effect to, and implement

      Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020             Page 7 of 16
               the intent of the Legislature with well-established rules of
               statutory construction. We examine the statute as a whole,
               reading its sections together so that no part is rendered
               meaningless if it can be harmonized with the remainder of the
               statute. And we do not presume that the Legislature intended
               language used in a statute to be applied illogically or to bring
               about an unjust or absurd result.


       Anderson v. Gaudin, 42 N.E.3d 82, 85 (Ind. 2015) (cleaned up).


[10]   APRA generally provides that “it is the public policy of the state that all persons

       are entitled to full and complete information regarding the affairs of

       government and the official acts of those who represent them as public officials

       and employees.” I.C. § 5-14-3-1. “Thus, in APRA our legislature declared that

       transparency in government is the public policy of the State of Indiana.” Groth

       v. Pence, 67 N.E.3d 1104, 1108 (Ind. Ct. App. 2017), trans. denied.


[11]   However, “the public’s right of access to public records is also subject to well-

       recognized exceptions under APRA.” Id. One of APRA’s exceptions states

       that the following records are not subject to disclosure “at the discretion” of an

       agency: “Investigatory records of law enforcement agencies . . . .” I.C. § 5-14-

       3-4(b)(1). APRA defines an “[i]nvestigatory record” as “information compiled

       in the course of the investigation of a crime.” I.C. § 5-14-3-2(i).


[12]   As an initial matter, we cannot agree with the Dispatch Center’s assertion on

       appeal that it is a law enforcement agency under APRA. APRA defines

       “[p]ublic agency” to include “[a]ny law enforcement agency, which means an

       agency or a department of any level of government that engages in the

       Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020         Page 8 of 16
       investigation, apprehension, arrest, or prosecution of alleged criminal

       offenses . . . .” I.C. § 5-14-3-2(q)(6). The statute further lists the following

       examples of an APRA law enforcement agency: “the state police department,

       the police or sheriff’s department of a political subdivision, prosecuting

       attorneys, members of the excise police . . . , conservation officers . . . , gaming

       agents . . . , gaming control officers . . . , and the security division of the state

       lottery commission.” Id. The Dispatch Center has not designated any evidence

       that it is subject to the direction or control of any law enforcement agency.

       Indeed, the designated evidence suggests it operates under the ultimate control

       of the Carroll County Commissioners. And neither is the Dispatch Center

       engaged in the “investigation . . . of alleged criminal offenses” when it merely

       relays information from phone calls to relevant emergency personnel. The

       Dispatch Center is a call relay center, not a law enforcement agency.


[13]   Nonetheless, we agree with the Dispatch Center that the exception for

       investigatory records of law enforcement agencies applies to the 9-1-1 calls here.

       The Carroll County Sheriff’s Department and the Carroll County Prosecutor,

       which are law enforcement agencies under APRA, “compiled” the 9-1-1 calls in

       the course of their investigation of the suspected arson when they received

       copies of the calls from the Dispatch Center. As the Dispatch Center notes, the

       dictionary definition of “to compile” includes “to collect.” Appellant’s Br. at

       16 (quoting Merriam-Webster’s online dictionary).


[14]   And our case law is clear that, at least when requested from a law enforcement

       agency directly, 9-1-1 calls can be excepted from disclosure under APRA. Lane-

       Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020            Page 9 of 16
El v. Spears¸ 13 N.E.3d 859, 871-72 (Ind. Ct. App. 2014), trans. denied. In Lane-

El, a convicted child molester sought various police records underlying his

conviction, including a 9-1-1 call, pursuant to APRA. We stated as follows:


        We have not frequently interpreted the term “investigatory
        record.” However, we have held that although we are required
        to construe exceptions to public disclosure laws strictly, that does
        not mean that we will contravene expressed exceptions specified
        by the Legislature. Journal Gazette v. Bd. of Trustees of Purdue
        Univ., 698 N.E.2d 826, 828 (Ind. Ct. App. 1998). We have
        interpreted the definition of “information compiled in the course
        of the investigation of a crime” broadly to include records of
        autopsies, even when the autopsy results in a finding that a crime
        has not occurred. See Althaus v. Evansville Courier Co., 615 N.E.2d
        441 (Ind. Ct. App. 1993) (holding that if a coroner can satisfy one
        of the conditions of the autopsy statute, that is sufficient to satisfy
        the coroner’s burden of proving that records are investigatory),
        reh’g denied; see also Heltzel v. Thomas, 516 N.E.2d 103 ([Ind. Ct.
        App.] 1987) (citing reasons for considering a coroner’s
        investigations investigatory records, including the fact that the
        record may contain “a narrative of the coroner’s observations,
        which may also include the impressions of law enforcement
        personnel present who are required to assist the coroner” and
        that “at the time of a death investigation by the coroner, it is
        often difficult to determine whether that particular case will be
        the subject of a criminal prosecution”), trans. denied. Contrarily,
        we have held that a subpoena is not the type of public record
        which would automatically fall into the category of “information
        compiled in the course of the investigation of a crime.” Evansville
        Courier v. Prosecutor, Vanderburgh Cnty., 499 N.E.2d 286, 288 (Ind.
        Ct. App. 1986), reh’g denied, trans. denied.




Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020          Page 10 of 16
       Id. at 871. We then agreed with the police department that the defendant’s

       “requested records were investigatory because they were compiled by [the

       police department] during the investigation of [the defendant’s] . . . case.” Id.


[15]   Thus, consistent with the plain text of the statute and pursuant to our holding in

       Lane-El, we conclude that the trial court erred when it entered summary

       judgment for Fox 59. It would be incongruous to hold, as we did in Lane-El,

       that 9-1-1 calls may be withheld from public disclosure when requested directly

       from the law enforcement agency that compiled them, but then to hold

       otherwise when the records are instead sought from the dispatch center that

       originally received the calls. One purpose for the exception for investigatory

       records of law enforcement agencies is not to compromise the integrity of

       ongoing criminal investigations, and investigatory records compiled by our law

       enforcement agencies often originate outside those agencies. That purpose

       would not be served if the exception applied only to requests made directly to

       law enforcement or to records that originated with the law enforcement agency.


[16]   Fox 59’s argument on appeal would effectively nullify APRA’s exception for

       the investigatory records of law enforcement agencies. As the State explains in

       its amicus brief on behalf of the Dispatch Center:


               [Fox 59] argued below that a record may be disclosable under the
               investigatory records exception if requested from one agency[]
               but not disclosable if requested from a law enforcement agency.
               If interpreted in this way, the exception loses much of its utility.
               This is particularly true today because information is often stored
               in electronic form. It would be nearly impossible for a law

       Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020        Page 11 of 16
               enforcement agency to ensure a record is not publicly disclosed
               by another agency short of physically seizing a computer hard
               drive or other electronic storage device. In other words, multiple
               agencies have “possession” of a record when stored in electronic
               form, and if the crux of disclosure is from which agency a record
               is requested, rather than if a law enforcement agency had
               compiled the record, the investigatory records exception ceases to
               serve its purpose.


               [Fox 59] also misinterprets the language of the exception by
               essentially reading “compiled” to mean “created.” Even if a
               record is created outside of a criminal investigation, it may still
               be compiled for such a purpose. The plain language of the
               statute must govern, and to hold as much facilitates the
               underlying purpose of the exception—to facilitate the
               investigation and prosecution of crimes.


       State’s Br. at 8-9 (citations omitted). We agree with the State’s analysis.


[17]   We briefly address three remaining points raised by Fox 59 on this issue. First,

       Fox 59 asserts that the Dispatch Center failed to designate evidence in response

       to the motion for summary judgment that would create a genuine issue of

       material fact as to whether the 9-1-1 calls were in the actual possession of the

       Carroll County Sheriff’s Department or the Carroll County Prosecutor. We

       cannot agree. The Dispatch Center designated Detective Rector’s affidavit

       regarding the 9-1-1 calls, in which Detective Rector stated that the public

       release of the calls would compromise the ongoing investigation. Moreover,

       Fox 59 designated the Dispatch Center’s initial response to the APRA request,

       in which the Dispatch Center stated that the local sheriff’s department and

       prosecutor were “exercising their discretion not to permit disclosure” of the 9-1-

       Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020            Page 12 of 16
       1 calls. Appellant’s App. Vol. II at 57. A reasonable finder of fact could infer

       from the designated evidence that local law enforcement agencies exercised

       control over the records. Accordingly, we reject Fox 59’s argument that it is

       entitled to summary judgment based on the designated evidence.


[18]   Fox 59 also asserts that this Court must defer to the PAC’s original

       determination in Fox 59’s favor. Fox 59 is simply not correct on this point. As

       we have explained:


               The Public Access Counselor is appointed by the Governor. I.C.
               § 5-14-4-6. The Public Access Counselor has the authority,
               among other things, to provide guidance to public agencies and
               officials regarding Indiana’s public access laws. I.C. § 5-14-4-10.
               This authority includes the power “[t]o issue advisory opinions to
               interpret public access laws . . . .” Id. Advisory opinions, by
               definition, are “nonbinding statements.” Black’s Law Dictionary
               1265 (10th ed. 2014).


               Our General Assembly created the Public Access Counselor
               position to provide parties with efficient—but, correspondingly,
               nonbinding—advice regarding compliance with Indiana’s public
               access laws. In light of that purpose, a party “is not required to
               file a complaint” with the Public Access Counselor “before filing
               an action” in the trial court for an alleged violation of Indiana’s
               public access laws. I.C. § 5-14-5-4. As such, when a complaint is
               filed in a trial court after the Public Access Counselor has
               rendered an advisory opinion on the matter, the court may find
               the Public Access Counselor’s opinion persuasive but the court
               owes no deference to that opinion.




       Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020       Page 13 of 16
       Groth, 67 N.E.3d at 1111 n.4. Thus, we are not bound by the PAC’s opinion. 2


[19]   Third, Fox 59 asserts several versions of its proposition that “[t]he public policy

       underlying APRA requires a liberal construction” of the disclosure requirement

       and “narrow construction of its exceptions.” Id. Amici for the Reporters

       Committee for Freedom of the Press and for Sixteen Media Organizations also

       rely on broad policy concerns in their brief in support of Fox 59, adding several

       examples of where media access to 9-1-1 calls has produced valuable public

       information. See Reporters Committee Amici Br. at 10-17. Be that as it may,

       the best evidence of our General Assembly’s intent regarding the scope of the

       APRA exception for the investigatory records of law enforcement agencies is

       the language of the statute itself, which is unambiguous. This Court has no

       discretion to consider what other policies might be important. We find Fox

       59’s and the amici’s arguments on this issue unpersuasive and instead apply the

       unambiguous statutory language.


                              Issue Two: Substitution of Fox 59 for Hasnie

[20]   The Dispatch Center’s other argument on appeal is that the trial court abused

       its discretion when it permitted Fox 59 to substitute itself for Hasnie as the real

       party in interest in these proceedings after Hasnie had left her employment at

       Fox 59. Indiana Trial Rule 17 states that “[e]very action shall be prosecuted in




       2
         Indeed, the Dispatch Center is quick to point out that the PAC’s opinion here does not appear to be
       consistent with prior PAC opinions. Appellant’s Br. at 22-23 (citing two prior PAC opinions).

       Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020                             Page 14 of 16
       the name of the real party in interest,” and our trial rules grant courts the

       authority to substitute parties as appropriate within the court’s discretion. E.g.,

       Ind. Trial Rule 25. “An abuse of discretion is when the decision is clearly

       against the logic and effect of the facts and circumstances.” Bennett v. State, 119

       N.E.3d 1057, 1058 (Ind. 2019). An abuse of discretion also occurs “when the

       trial court misinterprets the law.” Heraeus Med., LLC v. Zimmer, Inc., 135 N.E.3d

       150, 152 (Ind. 2019).


[21]   The Dispatch Center asserts that Fox 59 was not the real party in interest to

       Hasnie’s original APRA complaint. According to the Dispatch Center, “[o]nly

       the party making the [original] request has standing to bring an action under

       APRA.” Appellant’s Br. at 36. In support of that argument, the Dispatch

       Center cites Indiana Code Section 5-14-3-9, which refers to the “person making

       the request” under APRA. Further according to the Dispatch Center, that

       language prohibits the person who filed the APRA request or originally

       captioned the complaint from being an agent for a business. The Dispatch

       Center also asserts that any benefit that Hasnie’s request would have brought to

       Fox 59 would have been only “incidental.” Id. at 37.


[22]   We reject the Dispatch Center’s argument on this issue. As Fox 59 points out:


               Hasnie submitted the [APRA] request . . . in the course of her
               employment and as an agent of Fox 59. Fox 59 was the real
               party in interest from the outset of this litigation . . . as Hasnie’s
               actions . . . were solely in furtherance of Fox 59’s interests.




       Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020               Page 15 of 16
       Appellee’s Br. at 36. Fox 59’s assertions are readily supported by the facts and

       circumstances that were before the trial court when it considered Fox 59’s

       request to substitute itself for Hasnie. There is no dispute that Hasnie was

       employed as a news reporter for Fox 59 at the time of her APRA request and

       complaint; that she sought the records not out of some personal curiosity but

       pursuant to that employment; and that, had she obtained the records, she would

       have broadcast them on Fox 59 to, ostensibly, Fox 59’s benefit. Accordingly,

       the trial court did not abuse its discretion when it permitted Fox 59 to substitute

       itself for Hasnie after she left her employment with Fox 59.


                                                   Conclusion
[23]   In sum, we hold that the trial court erred when it entered summary judgment

       for Fox 59 and concluded that the Dispatch Center was not entitled to withhold

       the 9-1-1 calls as investigatory records of law enforcement agencies. However,

       we hold that the trial court did not abuse its discretion when it substituted Fox

       59 for Hasnie as the real party in interest. Thus, we affirm in part, reverse in

       part, and remand for further proceedings.


[24]   Affirmed in part, reversed in part, and remanded for further proceedings.


       Crone, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 19A-MI-2682 | April 29, 2020       Page 16 of 16
