MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Jul 29 2020, 10:53 am

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


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Daniel Brewington                                         Curtis T. Hill, Jr.
Dublin, Ohio                                              Attorney General
                                                          Frances Barrow
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Daniel Brewington,                                        July 29, 2020
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          19A-PL-3047
        v.                                                Appeal from the
                                                          Dearborn Superior Court
Dearborn Superior Court II,                               The Honorable
Judge Sally McLaughlin,                                   Donald J. Mote, Special Judge
Judge Brian Hill,                                         Trial Court Cause No.
Court Reporter Barbara Ruwe,                              15D01-1702-PL-13
Appellees-Defendants



Vaidik, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PL-3047 | July 29, 2020                Page 1 of 7
                                           Case Summary
[1]   Daniel Brewington sued Dearborn Superior Court II and other defendants,

      alleging that they failed to give him the complete audio of the grand-jury

      proceedings in his criminal case in violation of the Indiana Access to Public

      Records Act (APRA). Both Brewington and the defendants moved for

      summary judgment, and the trial court entered summary judgment in favor of

      the defendants. Because Indiana law only allows the release of a transcript of

      the testimony of a grand-jury witness, and not audio, we affirm the trial court.



                            Facts and Procedural History
[2]   In 2011, a Dearborn County grand jury indicted Brewington on six offenses. To

      help him prepare for trial, Brewington was given a transcript of the grand-jury

      proceedings. A jury trial was held in Dearborn Superior Court II before Special

      Judge Brian Hill, and the jury convicted Brewington of five of the six charges.

      On appeal, the Indiana Supreme Court affirmed three of Brewington’s

      convictions. Brewington v. State, 7 N.E.3d 946 (Ind. 2014).


[3]   In January 2016, Brewington submitted an APRA request to Dearborn Superior

      Court II, asking for an audio recording of the grand-jury proceedings in his

      criminal case. Appellant’s App. Vol. III p. 7. The court denied Brewington’s

      request. Id. at 11. In February, Brewington submitted an amended APRA

      request to the court, again seeking an audio recording of the grand-jury

      proceedings in his criminal case. The next month, before receiving a response to


      Court of Appeals of Indiana | Memorandum Decision 19A-PL-3047 | July 29, 2020   Page 2 of 7
      his amended request, Brewington filed a formal complaint with the Office of the

      Public Access Counselor.


[4]   In April 2016, the Public Access Counselor issued an advisory opinion that

      “because the transcript of the grand jury proceedings ha[d] previously been

      provided to [Brewington], a copy of the audio recordings of said proceedings

      should be released as well.” Id. at 66. In response to the Public Access

      Counselor’s advisory opinion, the court ordered the court reporter to “prepare a

      compact disc of audio recordings of the Grand Jury proceedings[.]” Id. at 68.

      Brewington received an audio recording but believed it was incomplete. In

      May, Brewington filed an amended request for “complete unedited copies of

      the grand jury audio” in his criminal case, which the court denied. Id. at 70.


[5]   In February 2017, Brewington filed a civil complaint under APRA in Dearborn

      Superior Court I against Dearborn Superior Court II/Judge Sally McLaughlin

      (the sitting judge), Judge Hill (the special judge in his criminal case), and

      Barbara Ruwe (the court reporter in Superior Court II) “for failing to disclose

      public records as required by law,” specifically, “the entire audio record from

      the grand jury proceedings” in his criminal case. Appellant’s App. Vol. II p. 76.

      Brewington sought (1) a declaration that the defendants violated APRA, (2) an

      injunction requiring the defendants to “disclose without alteration or redaction”

      an audio recording of the grand-jury proceedings in his criminal case, and (3)

      attorney’s fees and costs. Id. at 76-77.




      Court of Appeals of Indiana | Memorandum Decision 19A-PL-3047 | July 29, 2020   Page 3 of 7
[6]   In March 2017, Ruwe moved for judgment on the pleadings, which the trial

      court granted. In April, Brewington filed a motion for summary judgment. The

      remaining defendants (hereinafter, “Defendants”) then filed a cross-motion for

      summary judgment, alleging that Brewington “already received the records he

      requested and is not entitled to the records he . . . further requests.” Appellant’s

      App. Vol. III p. 4. Finding that Brewington was not entitled to an audio

      recording of the grand-jury proceedings under APRA, the court denied

      Brewington’s motion and granted Defendants’ cross-motion.


[7]   Brewington now appeals.



                                 Discussion and Decision
[8]   Brewington appeals the trial court’s grant of Defendants’ cross-motion for

      summary judgment. We review motions for summary judgment de novo,

      applying the same standard as the trial court. Hughley v. State, 15 N.E.3d 1000,

      1003 (Ind. 2014). That is, “The judgment sought shall be rendered forthwith 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 a judgment as a matter of

      law.” Ind. Trial Rule 56(C).


[9]   Under APRA, “Any person may inspect and copy the public records of any

      public agency during the regular business hours of the agency,” subject to

      several exceptions. Ind. Code § 5-14-3-3(a). One exception is that a public

      agency may not disclose records “declared confidential by state statute.” Ind.


      Court of Appeals of Indiana | Memorandum Decision 19A-PL-3047 | July 29, 2020   Page 4 of 7
Code section § 5-14-3-4(a)(1). Indiana Code 35-34-2-4(i) provides that grand-

jury proceedings are secret and generally should not be disclosed:


        Grand jury proceedings shall be secret, and no person present
        during a grand jury proceeding may, except in the lawful
        discharge of his duties or upon written order of the court
        impaneling the grand jury or the court trying the case on
        indictment presented by the grand jury, disclose:


                 (1) the nature or substance of any grand jury testimony; or


                 (2) any decision, result, or other matter attending the
                 grand jury proceeding.


        However, any court may require any person present during a
        proceeding to disclose the testimony of a witness as direct
        evidence in a prosecution for perjury.


See also Hinojosa v. State, 781 N.E.2d 677, 680 (Ind. 2003) (“[T]he general rule

regarding grand jury transcripts is that they be kept secret.”). Indeed, it is a

criminal offense to knowingly or intentionally disclose information acquired in

a grand-jury proceeding unless compelled by law. Ind. Code § 35-34-2-10(a);

Hinojosa, 781 N.E.2d at 680. However, the legislature created an exception to

the general rule of secrecy by granting trial courts the discretion to release a

“transcript” of a grand-jury witness’s testimony in the following narrow

circumstances:


        (1) for the official use of the prosecuting attorney; or


        (2) upon order of:
Court of Appeals of Indiana | Memorandum Decision 19A-PL-3047 | July 29, 2020   Page 5 of 7
                         (A) the court which impaneled the grand jury;


                         (B) the court trying a case upon an indictment of the grand
                         jury; or


                         (C) a court trying a prosecution for perjury;


                but only after a showing of particularized need for the transcript.


       I.C. § 35-34-2-10(b).


[10]   According to the above statutes, the general rule is that grand-jury proceedings

       are confidential and therefore cannot be disclosed under APRA. Although there

       are narrow circumstances under which a transcript of a grand-jury witness’s

       testimony may be disclosed, the statutes do not provide for the disclosure of

       audio. But Dearborn Superior Court II, in response to the Public Access

       Counselor’s advisory opinion, ordered the court reporter to give Brewington an

       audio recording of the grand-jury proceedings. However, that does not change

       our conclusion that these statutes do not authorize the disclosure of audio.

       Accordingly, Brewington is not entitled to any additional audio he believes

       exists from the grand-jury proceedings in his criminal case under APRA. We

       therefore affirm the trial court’s grant of Defendants’ cross-motion for summary

       judgment.1




       1
        Brewington filed at least two motions to disqualify the Office of the Attorney General in the trial court,
       which were denied. On appeal, Brewington says we should “consider the disqualification” of the Office of


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-3047 | July 29, 2020                      Page 6 of 7
[11]   Affirmed.


       Baker, J., and Bailey, J., concur.




       Attorney General. Appellant’s Br. p. 33. Brewington, however, has waived this argument for failing to
       support it with cogent reasoning and citation to authorities. See Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-3047 | July 29, 2020                    Page 7 of 7
