                                                                    Feb 25 2015, 10:09 am




APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEES
Robert L. Holleman                                         Gregory F. Zoeller
Pendleton, Indiana                                         Attorney General of Indiana
                                                           Kathy Bradley
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Robert L. Holleman,                                        February 25, 2015

Appellant-Plaintiff,                                       Court of Appeals Cause No.
                                                           49A05-1409-PL-443
        v.                                                 Appeal from the Marion Superior
                                                           Court.
                                                           The Honorable Timothy W. Oakes,
Indiana Department of                                      Judge.
Correction, Bruce Lemmon, as                               Cause No. 49D13-1405-PL-17608
Commissioner of the Indiana
Department of Correction, and
Bob Bugher, as Chief Counsel for
the Indiana Department of
Correction,
Appellees-Defendants.




Darden, Senior Judge




Court of Appeals of Indiana | Opinion 49A05-1409-PL-443 | February 25, 2015                 Page 1 of 7
                                       Statement of the Case
[1]   Robert Holleman sued the Indiana Department of Correction and its officials

      for failing to respond to his public records request. The Department

      subsequently produced documents in response to his request and moved to

      dismiss his complaint on grounds of mootness. The trial court dismissed the

      case and Holleman appeals. The Department concedes that remand is

      necessary for further proceedings. We affirm in part, reverse in part, and

      remand.


                                                       Issue
[2]   Holleman raises two issues, which we consolidate and restate as: whether the

      trial court erred in granting the Department’s motion to dismiss.


                                Facts and Procedural History
[3]   On January 9, 2014, Holleman submitted a request for public records to the

      Indiana Department of Correction, directed to its Commissioner, Bruce

      Lemmon. The Department did not respond to Holleman’s request.


[4]   Next, on February 11, 2014, Holleman filed a formal complaint with the

      Indiana Public Access Counselor. The Counselor sent a notice to the

      Department, via Commissioner Lemmon and Chief Counsel Robert Bugher,

      requesting a response by February 24, 2014. The Department did not submit a

      response to the Counselor.




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[5]   On March 13, 2014, the Counselor issued an advisory opinion. He noted that if

      the Department possessed the records Holleman requested, then the

      Department “violated the Access to Public Records Act by not acknowledging

      [Holleman’s] request within seven days thereby denying [Holleman’s] request.”

      Appellant’s App. p. 19.


[6]   Holleman began this case on May 20, 2014, by filing a civil complaint against

      the Department, as well as against Lemmon and Bugher in their official

      capacities.1 He alleged that all three defendants violated statutes that govern

      access to public records by failing to respond to his request and to the

      Counselor’s request for a response to his formal complaint. He asked the court

      to impose a civil penalty of $100 on each of the three defendants. He also

      requested reimbursement for costs he incurred filing his civil complaint.


[7]   Subsequently, the Department, through Chief Counsel Bugher, sent Holleman a

      response to his public records request and included documents the Department

      asserted were responsive to Holleman’s request. Next, the Department filed a

      motion to dismiss Holleman’s complaint, alleging the dispute was moot

      because the Department had responded to Holleman.


[8]   Holleman responded to the motion to dismiss, asserting that the case was not

      moot because: (1) he had requested civil penalties, and (2) he had requested

      reimbursement for his court costs. The Department filed a reply in which it



      1
          We will refer to all three defendants collectively as “the Department.”


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       asserted that Holleman’s claims for penalties and court costs were rendered

       moot when the Department provided the documents. In addition, the

       Department asserted that, at a minimum, Lemmon and Bugher should be

       dismissed from the case because they were not proper defendants in an action

       involving a public records request.


[9]    The trial court granted the Department’s motion to dismiss and dismissed

       Holleman’s complaint with prejudice. This appeal followed.


                                     Discussion and Decision
[10]   The Department moved to dismiss Holleman’s complaint under Indiana Trial

       Rule 12(B). An argument that a case is moot resembles a motion to dismiss for

       failure to state a claim under Trial Rule 12(B)(6). A motion to dismiss for

       failure to state a claim tests the legal sufficiency of a claim, not the facts

       supporting it. Medley v. Lemmon, 994 N.E.2d 1177, 1182 (Ind. Ct. App. 2013),

       trans. denied. We review de novo a trial court’s ruling on such a motion, and we

       must determine whether the allegations on the face of the complaint establish

       any set of circumstances under which a plaintiff would be entitled to relief. Id.

       Courts are required to review the complaint in the light most favorable to the

       nonmoving party, with every inference in the nonmovant’s favor. Greer v. Buss,

       918 N.E.2d 607, 614 (Ind. Ct. App. 2009).


[11]   With respect to access to public information, the General Assembly has

       provided as follows:



       Court of Appeals of Indiana | Opinion 49A05-1409-PL-443 | February 25, 2015      Page 4 of 7
               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 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.
       Ind. Code § 5-14-3-1 (1995).


[12]   Indiana Code sections 5-14-3-1 et seq. set forth procedures that put into effect

       the General Assembly’s policy of liberal access to public information. It

       appears (and the Department does not dispute) that Holleman complied with

       statutory procedures in filing his public records request. Furthermore, the

       Department tendered its response six months after Holleman submitted his

       request, with no explanation for the delay.


[13]   In any event, the Department concedes that the trial court did not address

       Holleman’s claims for civil penalties and court costs and further concedes that

       those claims “did not become moot when Holleman was provided with the

       records.” Appellees’ Br. p. 5. Thus, the Department agrees with Holleman that

       “this matter should be remanded for further proceedings with respect to these

       claims.” Id. Based upon our review of statutory authorities, we agree that he

       has stated cognizable claims for relief with respect to civil penalties and court

       costs. See Ind. Code §§ 5-14-3-9 (2013), 5-14-3-9.5 (2012). We thus reverse the

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       trial court’s grant of the Department’s motion to dismiss as it pertains to those

       claims and remand for further proceedings on those claims. We express no

       opinion on the merits of those claims.


[14]   Holleman argues that this Court, instead of the trial court, should determine

       whether he is entitled to civil penalties and court costs. We disagree. The

       statutes that govern the award of penalties and court costs require a degree of

       fact-finding, so the trial court is the appropriate forum to address those claims.

       See Ind. Code §§ 5-14-3-9 (court shall award court costs if it is proven that “the

       plaintiff substantially prevails”), 5-14-3-9.5 (court may award civil penalties if it

       is proven that the public official denied the request “with the specific intent to

       unlawfully withhold a public record”).


[15]   However, there is one point of contention between the parties. The

       Department asserts that Holleman’s complaint is moot with respect to the

       actual production of documents because the Department eventually produced

       documents in response to his request. Holleman asks this Court to strike that

       portion of the Department’s Appellees’ Brief, asserting that it goes beyond the

       scope of the arguments he presents in his Appellant’s Brief. He further argues

       on the merits that there is a live controversy as to whether the Department may

       have unfairly withheld additional documents or information that is responsive

       to his public records request.


[16]   In his response to the Department’s motion to dismiss, Holleman never claimed

       that his public records request remained live after the State produced the


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       documents. He noted in passing that the Department produced “some of the

       requested records,” Appellant’s App. p. 51, but his arguments focused primarily

       upon his claims for civil penalties and attorney’s fees. In addition, his

       response’s prayer for relief requested further proceedings on civil penalties and

       costs but did not assert that the trial court needed to determine whether the

       Department had fully responded to his public records request. Holleman failed

       to place the trial court on notice that he intended to litigate the sufficiency of

       the Department’s response to his public records request. He has thus waived

       that claim for appellate review. See Bowden v. Agnew, 2 N.E.3d 743, 749 (Ind.

       Ct. App. 2014) (claim waived for raising it for the first time on appeal). We

       affirm the trial court’s grant of the Department’s motion to dismiss as it pertains

       to whether the Department produced all of the documents or information in its

       possession that is responsive to Holleman’s request.



                                                Conclusion
[17]   For the reasons stated above, we affirm in part, reverse in part, and remand for

       proceedings consistent with this opinion.


[18]   Affirmed in part, reversed in part, and remanded.


[19]   Robb, J., and Crone, J., concur.




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