MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be                                         Jun 12 2018, 9:23 am
regarded as precedent or cited before any
                                                                                  CLERK
court except for the purpose of establishing                                  Indiana Supreme Court
                                                                                 Court of Appeals
the defense of res judicata, collateral                                            and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Matthew E. Koch                                          Curtis T. Hill, Jr.
Bunker Hill, Indiana                                     Attorney General of Indiana
                                                         Frances Barrow
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Matthew E. Koch,                                         June 12, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A02-1708-MI-1767
        v.                                               Appeal from the Marion Superior
                                                         Court
State Department of Revenue,                             The Honorable David J. Dreyer,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         49D10-1612-MI-45368



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1708-MI-1767 | June 12, 2018              Page 1 of 6
                                Case Summary and Issue
[1]   Matthew Koch, pro se, filed a petition to compel access to public records,

      seeking records from the Indiana Department of Revenue (“IDR”) related to his

      grandparents’ estate. The trial court dismissed his petition on IDR’s motion.

      Koch now appeals the trial court’s dismissal, raising one issue for our review:

      whether the trial court’s dismissal of his petition was proper. Concluding the

      trial court did not err in granting the motion to dismiss, we affirm.



                            Facts and Procedural History
[2]   Koch’s grandfather, Norman W. Koch, passed away in 2005, and Koch

      expected to inherit from him through a trust that would vest at the passing of

      Koch’s grandmother, Pauline. Koch has been imprisoned since 2008, and did

      not learn of Pauline’s 2010 passing until March 2015. Koch then began

      investigating because he believed he was defrauded out of receiving his

      inheritance. As part of this investigation, Koch filed a public records request

      with IDR seeking copies of all records “pertaining, in any way, to inheritance

      taxes for either of the estates of Norman W. Koch and Pauline A. Koch . . . .”

      Appellant’s Appendix, Volume II at 5. IDR responded by letter informing

      Koch that inheritance tax documents are not subject to disclosure under the

      Access to Public Records statutes because Koch was not listed as “a devisee, an

      heir, a successor in interest or a surviving joint tenant” on Pauline’s inheritance

      tax returns. Id. at 9.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-MI-1767 | June 12, 2018   Page 2 of 6
[3]   Koch then filed a petition to compel access to public records in the trial court.

      IDR filed a motion to dismiss Koch’s petition based on the same grounds on

      which it denied Koch’s request. The trial court granted IDR’s motion to

      dismiss. Koch now appeals.



                                 Discussion and Decision
                                     I. Standard of Review
[4]   The trial court granted IDR’s motion to dismiss for failure to state a claim upon

      which relief could be granted. See Ind. Trial Rule 12(B)(6). A motion to

      dismiss under Trial Rule 12(B)(6) tests the legal sufficiency of the plaintiff’s

      claim, not the facts supporting it. Hoosier Ins. Co. v. Riggs, 92 N.E.3d 685, 687

      (Ind. Ct. App. 2018). Therefore, a 12(B)(6) motion presents a legal question

      that we review de novo. Ward v. Carter, 90 N.E.3d 660, 662 (Ind. 2018). We

      may affirm a dismissal under Rule 12(B)(6) if it is sustainable on any basis in

      the record. Id. That is, if the complaint states a set of facts that, even if true,

      would not support the requested relief, we will affirm the dismissal. Freels v.

      Koches, 94 N.E.3d 339, 342 (Ind. Ct. App. 2018).


                                              II. Dismissal
[5]   Indiana Code section 5-14-3-3(a) states the general rule that “[a]ny person may

      inspect and copy the public records of any public agency during the regular

      business hours of the agency . . . .” Indiana Code section 5-14-3-1 states,




      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-MI-1767 | June 12, 2018   Page 3 of 6
              This chapter shall be liberally construed to implement [the policy
              that all persons are entitled to full and complete information
              regarding the affairs of government] 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.


      However, section 5-14-3-4 excepts certain records from the general disclosure

      requirement. Relevant to this case, section 5-14-3-4(a)(1) excepts records

      “declared confidential by state statute.” In turn, section 6-4.1-12-12(a) declares

      that IDR and any person who has or gains access to inheritance tax files “shall

      not divulge any information disclosed by the documents” except that disclosure

      may be made to a “devisee, an heir, a successor in interest, or a joint surviving

      tenant of the decedent for whom an inheritance tax return was filed.” Ind.

      Code § 6-4.1-12-12(a)(11).1


[6]   Here, IDR denied Koch’s request on the basis of Indiana Code sections 5-14-3-

      4(a)(1) and 6-4.1-12-12(a)(11), because he was not named as a devisee, heir,

      successor in interest, or joint surviving tenant in the inheritance tax returns filed

      by Pauline’s estate. See Appellant’s App., Vol. II at 8-9.2 A person who has

      been denied the right to inspect a public record by a public agency may file an

      action in the circuit or superior court of the county in which the denial occurred




      1
        Any person who discloses an inheritance tax return improperly faces a criminal sanction and termination
      from employment. Ind. Code § 6-4.1-12-12(b).
      2
        IDR did not specifically comment on any inheritance tax returns that may have been filed for Norman’s
      estate. Because, as we discuss below, Koch has not shown his entitlement to any tax return, that omission is
      irrelevant.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-MI-1767 | June 12, 2018              Page 4 of 6
      to compel the public agency to permit the person to inspect the public record.

      Ind. Code § 5-14-3-9(e).


[7]   Koch exercised his right to seek review of the denial in court. In the ensuing

      action, the trial court was to


              determine the matter de novo, with the burden of proof on the
              public agency to sustain its denial. If the issue in de novo review
              under this section is whether a public agency properly denied
              access to a public record because the record is exempted under
              section 4(a) of this chapter, the public agency meets its burden of
              proof under this subsection by establishing the content of the
              record with adequate specificity and not by relying on a
              conclusory statement or affidavit.


      Ind. Code § 5-14-3-9(f).


[8]   Koch alleges the trial court erred in granting a dismissal because his complaint

      properly stated a claim for relief on its face. Although Koch pleaded that he

      made a request for a public record maintained by a public agency and that his

      request was denied, he did not show his entitlement to the records. Inheritance

      tax returns are confidential by statute and can only be disclosed to a devisee,

      heir, successor in interest, or surviving joint tenant of the decedent. Although

      Koch states he is the biological grandson of Norman and Pauline and alleges

      “he believes himself to be a beneficiary” of his grandparents’ estate, Appellant’s

      App. at 6 (emphasis added), he has not shown that he is an heir. Therefore, his




      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-MI-1767 | June 12, 2018   Page 5 of 6
       complaint on its face does not support the relief he seeks and the trial court did

       not err in granting IDR’s motion to dismiss.3



                                                  Conclusion
[9]    Because Koch’s petition to compel production of a confidential public record

       did not show his entitlement to the record, the trial court properly dismissed his

       petition. The judgment of the trial court is affirmed.


[10]   Affirmed.


       Najam, J., and Altice, J., concur.




       3
         This court recently decided the case of Koch v. Vanderburgh Cty. Treasurer, 17A-MI-3018 (Ind. Ct. App. Apr.
       5, 2018), in which Koch was seeking Norman’s inheritance tax returns from the Vanderburgh County
       Treasurer. Because the designated evidence showed the Treasurer did not have in its possession documents
       relative to Norman’s estate and as “it is axiomatic that the Treasurer cannot produce records that it does not
       possess,” we affirmed the trial court’s grant of summary judgment to the Treasurer. Id. at *3.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-MI-1767 | June 12, 2018               Page 6 of 6
