                                                                                  FILED
                                                                           Aug 22 2016, 9:02 am

                                                                                  CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEES
      Nathaniel J. Heber                                         Pamela G. Schneeman
      Atlanta, Georgia                                           Office of Corporation Counsel
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      David Heber,                                               August 22, 2016
      Appellant-Plaintiff,                                       Court of Appeals Cause No.
                                                                 49A02-1603-PL-549
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      Indianapolis Metropolitan Police                           The Honorable James A. Joven,
      Department, and City of                                    Judge
      Indianapolis Office of                                     Trial Court Cause No.
      Corporation Counsel,                                       49D13-1601-PL-158
      Appellees-Defendants.




      Barnes, Judge.


                                              Case Summary
[1]   David Heber appeals the trial court’s dismissal of his complaint against the

      Indianapolis Metropolitan Police Department (“IMPD”) and the Office of

      Corporation Counsel of the City of Indianapolis (“OCC”) (collectively “the

      Appellees”). We reverse and remand.

      Court of Appeals of Indiana | Opinion 49A02-1603-PL-549 | August 22, 2016                     Page 1 of 6
                                                       Issue
[2]   The sole restated issue is whether the trial court properly concluded that the

      Appellees could not be sued under the Indiana Access to Public Records Act

      (“APRA”).


                                                       Facts
[3]   The facts as alleged in Heber’s complaint are that, on May 16, 2015, Heber and

      another individual were robbed at gunpoint in Indianapolis. IMPD

      investigated the case, which resulted in charges being filed against an individual

      six days later. Heber requested and received from IMPD a copy of the Incident

      Report for the robbery generated on May 16, 2015.


[4]   On June 26, 2015, Heber filed a request with IMPD and the OCC for records

      related to the robbery aside from the initial Incident Report, pursuant to the

      APRA. The OCC’s public access counselor, Samantha DeWester, denied this

      request, stating that Heber had failed to specify which records he was seeking

      with reasonable particularity. On July 15, 2015, Heber filed a second, more

      detailed request for records related to the robbery. DeWester denied this

      second request, again on the basis that it lacked reasonable particularity.


[5]   On August 2, 2015, Heber filed a complaint with the Indiana Public Access

      Counselor, Luke Britt, with respect to the Appellees’ failure to provide him with

      the requested records. On September 15, 2015, Britt filed an advisory opinion

      stating his belief that the Appellees violated the APRA by not timely

      responding to the June 26, 2015 records request and that they were not justified

      Court of Appeals of Indiana | Opinion 49A02-1603-PL-549 | August 22, 2016   Page 2 of 6
      in denying either request on the basis of an alleged lack of reasonable

      particularity.1 After issuance of this advisory opinion, the Appellees did not

      provide the requested records to Heber.


[6]   On December 26, 2015, Heber filed a complaint in the trial court against the

      Appellees, seeking release of the requested records, along with an award of

      reasonable costs, attorney fees, and civil penalties. On January 19, 2016, the

      Appellees filed a motion to dismiss Heber’s complaint. The motion alleged

      solely that the Appellees were not entities that could be sued under the APRA.

      The trial court granted the motion to dismiss. Heber now appeals.


                                                    Analysis
[7]   The Appellees’ motion to dismiss alleged that Heber’s complaint failed to state

      a claim upon which relief could be granted, pursuant to Indiana Trial Rule

      12(B)(6). We review a trial court’s grant of such a motion de novo. Lockhart v.

      State, 38 N.E.3d 215, 217 (Ind. Ct. App. 2015). We accept as true the facts

      alleged in a complaint when assessing a ruling on a motion to dismiss,

      considering the pleadings in a light most favorable to the plaintiff and drawing

      every reasonable inference in favor of the plaintiff. Id. We will affirm dismissal




      1
        The advisory opinion noted that the records sought by Heber could fall under an exception for law
      enforcement investigatory records under the APRA, but if they did so, IMPD and the OCC should have so
      claimed in its denials of Heber’s requests.

      Court of Appeals of Indiana | Opinion 49A02-1603-PL-549 | August 22, 2016                    Page 3 of 6
      of a complaint under Trial Rule 12(B)(6) only if the facts alleged in the

      complaint are incapable of supporting relief under any set of circumstances. Id.


[8]   The Appellees have not filed a brief. Instead, they have filed a “stipulation”

      conceding that the granting of the motion to dismiss should be reversed, in light

      of our holding in Lane-El v. Spears, 13 N.E.3d 859 (Ind. Ct. App. 2014), trans.

      denied, cert. denied. In that case, we squarely held that the Indianapolis Police

      Department, the predecessor to IMPD, was a “public agency” properly subject

      to suit under the APRA for violations of that act. Lane-El, 13 N.E.3d at 866.

      Specifically, the APRA includes within its definition of “public agency” “[a]ny

      law enforcement agency . . . .” Ind. Code § 5-14-3-2(q)(6); see also Lane-El, 13

      N.E.3d at 866. Furthermore, a “public agency” includes any “county,

      township, school corporation, city, or town, or any board, commission,

      department, division, bureau, committee, office, instrumentality, or authority of

      any county, township, school corporation, city, or town . . . .” I.C. § 5-14-3-

      2(q)(2)(A); see also Lane-El, 13 N.E.3d at 866 n.3. The OCC falls under this

      definition.


[9]   The Appellees failed to disclose Lane-El in its legal memorandum to the trial

      court accompanying its motion to dismiss. There is no contrary authority

      regarding the propriety of suing entities such as the Appellees under the APRA.

      The decisions of this court are binding upon trial courts. See Lincoln Utilities,

      Inc. v. Office of Util. Consumer Counselor, 661 N.E.2d 562, 565 (Ind. Ct. App.

      1996), trans. denied. The United States Supreme Court denied certiorari in Lane-

      El on April 27, 2015. Thus, the case was final for nearly eight months before

      Court of Appeals of Indiana | Opinion 49A02-1603-PL-549 | August 22, 2016   Page 4 of 6
       the Appellees filed their motion to dismiss, which claimed solely, and contrary

       to Lane-El, that they could not be sued under the APRA. It is clear, as the

       Appellees have stipulated, that the granting of the motion to dismiss must be

       reversed and this case remanded for further proceedings.


[10]   Whether Heber ultimately will be successful in proving the Appellees violated

       the APRA remains to be seen. However, the Appellees’ motion to dismiss,

       which failed to cite controlling contrary authority, and the erroneous granting

       of that motion have necessitated expense and significant delay in resolution of

       the case. Under Indiana Appellate Rule 67, this court may sua sponte award

       appellate attorney fees to a prevailing party if an appeal “is ‘permeated with

       meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of

       delay.’” In re Walter Penner Trust, 22 N.E.3d 593, 602 (Ind. Ct. App. 2014)

       (quoting GEICO v. Rowell, 705 N.E.2d 476, 483 n.12 (Ind. Ct. App. 1999)),

       trans. denied. Although we commend the Appellees for now conceding that the

       motion to dismiss must be reversed, the fact remains that the motion was

       granted and Heber had to pursue this appeal because of a wholly meritless and

       possibly frivolous argument by the Appellees. As such, we conclude that an

       award of appellate attorney fees to Heber is appropriate. We remand for the

       trial court to calculate an appropriate amount for such an award.2




       2
         Appellate Rule 67(C) provides in part, “Costs against any governmental organization, its officers and
       agencies, shall be imposed only to the extent permitted by law.” Indiana Code Section 5-14-3-9(i) provides
       that a court “shall” award attorney fees to a plaintiff who substantially prevails in an APRA lawsuit if the
       plaintiff first sought and received an advisory opinion from the public access counselor before filing suit.
       Although it is unclear yet whether Heber will substantially prevail on the merits of his APRA claim, we

       Court of Appeals of Indiana | Opinion 49A02-1603-PL-549 | August 22, 2016                          Page 5 of 6
                                                     Conclusion
[11]   We reverse the granting of the Appellees’ motion to dismiss and remand for

       further proceedings consistent with this opinion. Additionally, we remand for

       the trial court to calculate an appropriate amount of appellate attorney fees that

       Heber is entitled to collect from the Appellees.


[12]   Reversed and remanded.


       Riley, J., and Bailey, J., concur.




       conclude it is wholly consistent with this statutory provision, as well as the overarching purposes of the
       APRA, to require the Appellees to pay Heber’s attorney fees for this appeal.

       Court of Appeals of Indiana | Opinion 49A02-1603-PL-549 | August 22, 2016                            Page 6 of 6
