MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                                 FILED
precedent or cited before any court except for the                      Nov 15 2018, 8:52 am

purpose of establishing the defense of res                                   CLERK
                                                                         Indiana Supreme Court
judicata, collateral estoppel, or the law of the                            Court of Appeals
                                                                              and Tax Court
case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEES
Michael M. Williams                                     ALLEN COUNTY SUPERIOR AND
Michigan City, Indiana                                  CIRCUIT COURTS AND HON.
                                                        WENDY DAVIS
                                                        Curtis T. Hill, Jr.
                                                        Attorney General of Indiana

                                                        Patricia C. McMath
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana

                                                        ATTORNEY FOR APPELLEE
                                                        CLERK LISBETH A. BORGMANN

                                                        Thomas A. Hardin
                                                        Shine & Hardin LLP
                                                        Fort Wayne, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael M. Williams,                                    November 15, 2018
Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                        02A03-1708-MI-1913
        v.                                              Appeal from the Allen Superior
                                                        Court
Allen County Superior and                               The Honorable Nancy Eshcoff
Circuit Courts, Wendy W.                                Boyer, Judge



Court of Appeals of Indiana | Memorandum Decision 02A03-1708-MI-1913 | November 15, 2018         Page 1 of 9
      Davis, Lisbeth A. Borgmann,                             Trial Court Cause No.
      and Marcia Terenet,                                     02D01-1610-MI-1035

      Appellees-Defendants.



      Shepard, Senior Judge.


[1]   Michael Williams received a paper copy of his trial transcript but later

      requested a copy of the original recording under Indiana’s Access to Public

      Records Act. He contends that a defendant is entitled to a record of his trial

      proceedings in the format of his choice. The trial court granted summary

      judgment to Allen County court officials, determining Williams did not need a

      copy of the recording because the paper copy was sufficient. We affirm.


                                    Facts and Case History
[2]   In 1989, Williams was convicted in Allen County of battery, a Class C felony,

      in Cause Number 02D04-8905-CF-395 (CF-395). He did not appeal. In a later

      case, Williams’ battery conviction was cited as a predicate felony for a habitual

      offender enhancement. He remains incarcerated.


[3]   In 1999, Williams filed a petition for post-conviction relief on the battery

      conviction but withdrew it in 2001 after obtaining a copy of his trial transcript.

      In 2008, Williams requested leave for a belated appeal of his battery conviction,

      but the trial court denied his request. This Court affirmed. See Williams v. State,

      No. 02A03-0805-CR-218 (Ind. Ct. App. Sept. 29, 2008), trans. denied.



      Court of Appeals of Indiana | Memorandum Decision 02A03-1708-MI-1913 | November 15, 2018   Page 2 of 9
[4]   On January 19, 2014, Williams sent a request for access to public records to the

      Allen County Courthouse, asking for a copy of the “trial disc” from CF-395.

      Appellant’s App. Vol. 2, p. 55. The Allen Circuit and Superior Courts Clerk

      denied his request, stating the office did not have such a disc. The Allen

      Superior Court separately denied his request, stating that the court “does not

      make copies of ‘trial disks’” but that he was otherwise free to inspect the court’s

      files. Id. at 79.


[5]   In February 2014, Williams filed a formal complaint with the Indiana Public

      Access Counselor asking for a ruling that he is entitled to a copy of the trial

      disc. The Allen Superior Court filed a response. Neither party advised the

      Counselor that Williams already had a printed copy of the trial transcript. On

      April 1, 2014, the Counselor issued an advisory opinion recommending that the

      court give Williams a copy of the recording if “the Court has . . . the method of

      electronic retrieval to make a trial disk of your proceeding.” Id. at 73.


[6]   In December 2014, Williams filed a second petition for post-conviction relief on

      his battery conviction. It appears from the record that the petition is pending.


[7]   On April 21, 2016, Williams filed a complaint in Sullivan County (where he

      was incarcerated at the time) against the Allen County Circuit and Superior

      Courts, Judge Wendy W. Davis, Allen County Clerk Lisbeth A. Borgmann,

      and Court Reporter Marcia Terenet, claiming they violated the Access to Public

      Records Act, Indiana Code section 5-14-3-1 et seq., by failing to give him a copy




      Court of Appeals of Indiana | Memorandum Decision 02A03-1708-MI-1913 | November 15, 2018   Page 3 of 9
       of the trial recording. He asked that the defendants be ordered to provide a

       copy of the disc and to pay civil penalties.


[8]    The case was transferred to Allen County, where the parties filed cross-motions

       for summary judgment. On July 20, 2017, the trial court granted summary

       judgment to the court officials, stating that they met their obligations under

       APRA by giving Williams the paper transcript in 1999. This appeal followed.


                                                  Analysis
[9]    A movant is entitled to summary judgment “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.” Ind. Trial Rule 56(C).

       We review summary judgment de novo. Schoettmer v. Wright, 992 N.E.2d 702

       (Ind. 2013). We construe all facts and reasonable inferences drawn therefrom

       in a light most favorable to the non-moving party. McSwane v. Bloomington

       Hosp. & Healthcare Sys., 916 N.E.2d 906 (Ind. 2009). We owe no deference to a

       trial court’s legal conclusions. Int’l Union of Police Assocs., Local No. 133 v.

       Ralston, 872 N.E.2d 682 (Ind. Ct. App. 2007). Cross-motions for summary

       judgment do not alter this standard or change our analysis. Erie Indem. Co. v.

       Estate of Harris, 99 N.E.3d 625 (Ind. 2018).


[10]   Williams accuses the court, the clerk, and the court reporter of acting “above

       the law” in denying his request for a copy of his trial recording. Appellant’s Br.

       p. 8. The trial court ruled otherwise, and we agree.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1708-MI-1913 | November 15, 2018   Page 4 of 9
[11]   The General Assembly has determined:


               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. 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. [APRA] 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.


       Ind. Code § 5-14-3-1 (1995). We apply a presumption in favor of disclosure of

       records. Evansville Courier & Press v. Vanderburgh Cty. Health Dep’t, 17 N.E.3d

       922 (Ind. 2014).


[12]   The version of APRA that was in effect when Williams filed his records request

       in 2014 declared: “[a]ny person may inspect and copy the public records of any

       public agency during the regular business hours of the agency.” Ind. Code § 5-

       14-3-3(a) (2012). The Indiana Supreme Court has declared a similar broad

       policy in Indiana Administrative Rule 9(D)(1), which provides that court

       records shall be “accessible to the public.” If a public agency denies a request to

       inspect a record, a trial court reviews the matter de novo, “with the burden of

       proof on the public agency to sustain its denial.” Ind. Code § 5-14-3-9 (2013).


[13]   APRA defines a public record as:



       Court of Appeals of Indiana | Memorandum Decision 02A03-1708-MI-1913 | November 15, 2018   Page 5 of 9
               any writing, paper, report, study, map, photograph, book, card,
               tape recording, or other material that is created, received,
               retained, maintained, or filed by or with a public agency and
               which is generated on paper, paper substitutes, photographic
               media, chemically based media, magnetic or machine readable
               media, electronically stored data, or any other material,
               regardless of form or characteristics.


       Ind. Code § 5-14-3-2 (2013). Copying a record is defined as “transcribing by

       handwriting, photocopying, xerography, duplicating machine, duplicating

       electronically stored data onto a disk, tape, drum, or any other medium of

       electronic data storage, and reproducing by any other means.” Id.


[14]   The Code further provides:


               A public agency that maintains or contracts for the maintenance
               of public records in an electronic data storage system shall make
               reasonable efforts to provide to a person making a request a copy
               of all disclosable data contained in the records on paper, disk,
               tape, drum, or any other method of electronic retrieval if the
               medium requested is compatible with the agency’s data storage
               system.


       Ind. Code § 5-14-3-3(d).


[15]   Indiana Administrative Rule 9(D)(4) states that a person may not be denied a

       right to access a court record, but a “Court may manage access to audio and

       video recordings of its proceedings to the extent appropriate to avoid substantial

       interference with the resources or normal operation of the court . . . .”




       Court of Appeals of Indiana | Memorandum Decision 02A03-1708-MI-1913 | November 15, 2018   Page 6 of 9
[16]   If a statute is clear and unambiguous, we apply its words and phrases “‘in their

       plain, ordinary, and usual sense.’” Garner v. Kempf, 93 N.E.3d 1091, 1094 (Ind.

       2018) (quoting KS&E Sports v. Runnels, 72 N.E.3d 892, 898-99 (Ind. 2017)).

       Williams already had a paper copy of the transcript from CF-395 when he

       requested a copy of the recording in 2014. He had received the paper copy, in

       the form he had requested, during his prior post-conviction proceeding,

       consistent with ARPA. Nothing in ARPA or Administrative Rule 9 at the time

       Williams filed his request required the Allen Superior Court or the trial court
                                                                                                       1
       clerk to give him a second copy of the trial record in a different format.


[17]   Even if Williams was entitled to a copy of the original recording, the Allen

       Superior Court and the trial court clerk informed the trial court through a court

       employee’s affidavit that they no longer have it. Williams did not provide any

       evidence to the contrary. Court officials cannot be required to produce what

       they do not have, especially after Williams waited twenty-five years to present

       his request.


[18]   Further, neither the trial court nor the trial court clerk breached their

       recordkeeping obligations. In 1989, Indiana Criminal Rule 5 provided, “a




       1
         In 2018, the Indiana General Assembly amended Indiana Code section 5-14-3-3 to state, “A public agency
       shall provide an electronic copy or a paper copy of a public record, at the option of the person making the
       request for the public record. This subsection does not require a public agency to change the format of a
       public record.” 2018 Ind. Acts 2196. Even if the 2018 amendment applied to Williams’ case, it would not
       change the result because Williams originally requested a copy of the trial proceedings in paper format.
       Moreover, it may be that this amendment actually constitutes a declaration about court procedure, which is
       governed by Supreme Court rules.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1708-MI-1913 | November 15, 2018            Page 7 of 9
       printed transcript shall be produced and maintained as a court record for fifty-

       five years.” Trial courts were required to maintain recordings only “[i]f a

       transcript of the recorded matters has not been prepared.” Id. There is no

       dispute that the Allen Superior Court prepared a transcript and gave Williams a

       copy, so the court was not obligated to also retain the recording. The trial court

       did not err in determining the court officials were entitled to judgment as a

       matter of law.


[19]   Williams argues he is entitled to a copy of the trial recording because the

       Counselor determined it should be provided to him. While we carefully

       consider the Counselor’s decisions, they are “advisory.” Ind. Code § 5-14-4-10

       (1999). In this case the Counselor’s determination was based on incomplete

       facts because neither party told the Counselor that Williams had already

       received a paper copy of the transcript.


[20]   Finally, Williams argues he is entitled to an award of costs and fees. A plaintiff

       in an action to compel access to public records is so entitled, but only if he

       “substantially prevails.” Ind. Code § 5-14-3-9(i) (2013). Counsel Thomas

       Hardin correctly observes for the clerk that “Williams cannot be said to have

       ‘substantially prevailed’ by any definition of the term.” Appellant Borgmann’s

       Br. p. 14.


                                                Conclusion
[21]   For the reasons stated above, we affirm the judgment of the trial court.


[22]   Affirmed.
       Court of Appeals of Indiana | Memorandum Decision 02A03-1708-MI-1913 | November 15, 2018   Page 8 of 9
Kirsch, J., and May, J., concur.




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