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.




                                            2
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.
                                            3
      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
                                             4
      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



                                            5
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.




                                            6
       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


                                              7
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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